
Class J2.pA2Ji 
Bo»k 



l>\ itv 



POPULAR GOVERNMENT 



Popular Government 



ITS ESSENCE, ITS PERMANENCE 
AND ITS PERILS 



By 
WILLIAM HOWARD TAFT 

Kent Professor of Law 
Yale University 




NEW HAVEN : YALE UNIVERSITY PRESS 

LONDON: HUMPHREY MILFORD 

OXFORD UNIVERSITY PRESS 

MDCCCCXIV 



Tf ^ 



'^'^ 






Copyright, 1913 
By Yale University Press 



First printed November, 1913, 2000 copies 
Reprinted August, 1914, 1000 copies 







CONTENTS 

PAGE 

I. The Meaning of "We, the People of the 
United States/' in the Preamble of 

the Constitution 1 

II. The Representative System .... 22 

III. The Initiative and the Referendum . . 42 

IV. The Initiative, the Referendum, the 

Recall (Continued) 72 

V. The Direct Primary 96 

VI. "In Order to Form a More Perfect 

Union" 122 

VII. "To Establish Justice" 156 

VIII. "To Establish Justice" (Continued) 

The Selection and Tenure of Judges . 186 

IX. "To Establish Justice" (Continued) 

Public Need of Educated Lawyers and 
Judges — The Necessity and Advan- 
tage of Judge-Made Laws . . .216 
X. "To Insure Domestic Tranquillity, Pro- 
vide for the Common Defense" . . 239 



INTRODUCTION 

I came to Yale to assume my duties as Kent 
Professor of Law near the end of the school year, 
when it was not practical to add my courses of 
constitutional law to the then curriculum. It was 
suggested, therefore, that during the spring term, 
I prepare and deliver a course of lectures on some 
questions of modern government. This I did, 
making my text the preamble of the Constitution 
of the United States. In explaining the meaning 
of "We, the people," used to describe the source 
of political power, I thought it relevant and 
important to discuss the proposed changes from 
our republican form of government to a more 
direct, democratic government, and this led me 
to consider the initiative, the referendum and the 
recall, and also the direct primary, which, while 
not necessarily involved with the other issues, 
properly suggested itself for consideration with 
them. 

Under the clause of the preamble "to form a 
more perfect union," I considered very briefly the 
historical issue between those who favored the 
broad construction of the Federal powers under 
the Constitution, and those who took the States' 
rights view. 



viii INTRODUCTION 

Under the clause, "to establish justice," I dis- 
cussed the subject of recall of judges and the 
recall of judicial decisions. 

Under the phrase "to provide for the common 
defense," I considered the question of war and 
peace, under the Constitution, the army and the 
navy and their present needs, and the question of 
settlement of international controversies through 
diplomatic negotiation and by arbitration. 

At the meeting of the American Bar Associa- 
tion, at Montreal, in September last, I read two 
addresses, one on "The Selection and Tenure of 
Judges," and the other on "The Social Impor- 
tance of Proper Standards for Admission to the 
Bar." In the latter, I dealt with "judge-made" 
law. These addresses were closely related to the 
subjects treated of in my lecture on the establish- 
ment of justice under the Federal Constitution, 
and seemed an appropriate supplement. The 
Yale University lectures were eight in number, 
and, with the addresses at the American Bar 
Association, make the ten chapters which follow. 

Since I have prepared this book for the press, 
the valuable and interesting volume of President 
Lowell of Harvard, on "Public Opinion and 
Popular Government" in the American Citizen 
Series, has been issued, in which he discusses in a 
most satisfactory way the actual operation of 



INTRODUCTION ix 

the initiative, the referendum and the recall, and 
gives a valuable resume of the result of the use 
of these processes of direct government in Switzer- 
land and in the states where they have been 
adopted. 

I have not had the time to support the views 
that I have stated by such citations from official 
sources, but I am glad to be advised that the 
specific instances of record he gives are in general 
accord with my conclusions. 

I am very hopeful that while this movement for 
more direct government now seems to be spread- 
ing, actual experience under it in the states that 
have tried it longest is convincing the members of 
the various electorates who have seen it work that 
it is not a panacea, and that it is developing evils 
of its own that will require at least a partial 
retracing of their steps. 

Wm. H. Taft. 



The Meaning of "We, the People of the 

United States," in the Preamble 

OF THE Constitution 

It is my aim to discuss the subject of popular 
government under the Federal Constitution, and 
certain current issues as to the wisdom and sound- 
ness of the principles upon which its provisions are 
based. 

If I had attempted the treatment of this subject 
ten years ago, my task would have been easier than 
it is to-day, for in the last decade a school of 
political thinkers has arisen by whom the wisdom 
and equity of our fundamental law have been 
seriously questioned and the justice of the common 
law, inherited from England and modified by 
judicial decision and statute, is attacked as not 
squaring with the proper civic and social and 
economic ideals of to-day. 

It is difficult, therefore, to enter upon this dis- 
cussion without taking up political, sociological 
and economic questions. As one reads the slash- 
ing criticism of everything which he accepted with- 



2 POPULAR GOVERNMENT 

out argument when a student of constitutional 
history and governmental law twenty years ago, 
he finds himself suffering dizzy sensations for want 
of stable ground upon which to stand. Not only 
are the views of those who made the Constitution 
said to be unsound and outworn, but these Fathers 
of the Republic are themselves severely arraigned 
because of their alleged class feeling as land 
owners and creditors. We have been accustomed 
to muckraking in the case of living public men, but 
it is novel to impeach our institutions which have 
stood the test of more than a century by similar 
methods with reference to their founders, now long 
dead. 

I can not think that this school of political 
philosophy will ultimately triumph. That some of 
its views may contain elements of truth and useful 
principle, requiring some changes and amend- 
ments in our fundamental law, may well be; but 
that it can justify and secure a radical change in 
the structure of our Government, and do away 
with its character as a Republic, based on the 
principles of popular representation, I can not 
believe. 

The doctrines of the new school have been put 
into practice in a number of the States, and have 
acquired a vogue that is likely to extend their 
appHcation. But one of the saving qualities of the 



MEANING OF "WE, THE PEOPLE'' 3 

American people is their ability to make mistakes, 
to take a wrong course, and then to retrace it 
when the results and facts show them the truth. 
They frequently have to incur a very considerable 
cost in learning these lessons, but, as a people, 
they are quick to appreciate them, and do not seem 
to have pride of opinion that will keep them from 
a change, even in the short period of a presiden- 
tial term. Therefore, while we may expect this 
"remedy of infusing more democracy in our exist- 
ing democracy" to continue for a time, we have 
reason to hope that its obvious inconveniences, the 
appearance of new evils in its use and the prob- 
able return in possibly different forms of the 
old grievances for which these changes are now 
regarded as a sovereign cure, will ultimately con- 
vince the people that the difficulty in the operation 
of our present machinery has not been in its lack 
of adaptability to our needs, but it has been due to 
the failure of a majority of the people to dis- 
charge their duty as responsible members of a 
political community. Upon those of us, therefore, 
who appear to be in the minority in opposing these 
new governmental devices, the duty is plain of 
pointing out their defects and awaiting the event 
to demonstrate the truth of what we say. I would 
not say that one kind of political machinery is 
not better than another for securing good govern- 



4 POPULAR GOVERNMENT 

ment and the expression of sober popular will, but 
I would say that, generally speaking, between the 
two systems, if the real reason why one does not 
work is the failure of the people to discharge their 
duty thereunder, a new system is not hkely to 
work any better, when if properly discharged, the 
duty of the people is more onerous than before. 

In examining the Constitution, the first clause 
that one reads is the preamble. The preamble is 
a general declaration of the Convention as to the 
purposes of the Constitution. The preamble has 
been much used in argument in the Supreme Court 
to aid the construction of the Constitution. The 
title of an act — and I presume the preamble of the 
Constitution comes within such a description — can 
hardly be used to change the actual language used 
in the body of the instrument which is to control. 
Still it throws Hght upon the document. It will be 
useful to follow its phrases as a general plan for 
my discussion of popular government in the 
United States, its advantages, its purpose, its 
essence, its safeguards and its perils. 

The preamble is as follows : 

"We, the people of the United States, in order 
to form a more perfect union, estabhsh justice, 
insure domestic tranquillity, pro^dde for the 
common defence, promote the general welfare, and 



MEANING OF "WE, THE PEOPLE" 5 

secure the blessings of liberty to ourselves and our 
posterity, do ordain and establish this Constitu- 
tion for the United States of America." 

I ask your consideration, therefore, of the first 
phrase, "We, the people of the United States." 

These words became very important in the con- 
troversy that arose as to the construction of the 
Constitution soon after its adoption, and which 
continued until the end of the Civil War. The 
theory of those who construed the Constitution 
so as to restrict and minimize, as far as possible, 
the powers conferred upon the National Govern- 
ment, contended that the Constitution was in effect 
not much more than a mere compact between the 
several sovereign States, who retained their inde- 
pendence and sovereignty as to everything except 
that which was expressly or by inevitable implica- 
tion conferred upon the central government. 

The other view was that taken by those who 
wished to enlarge the national power by every 
reasonable and useful implication from the powers 
expressly conferred in the Constitution. The 
strict constructionists, like Mr. Jefferson and Mr. 
Calhoun, contended that the use of the words, 
"We, the people of the United States," meant that 
the peoples of the several States, as different state 
units, were entering into a compact with each 



6 POPULAR GOVERNMENT 

other to part with some of their faculties to form 
a central govermnent in order to accompHsh the 
purposes stated in the preamble. On the other 
hand, Chief Justice Marshall and the Supreme 
Court of the United States, in many decided cases, 
held that the words indicated that the body of the 
whole people of the United States, assembled, it is 
true, in the different States, because they could 
not assemble together, but acting as a whole 
people, were forming a new government of their 
own by ordaining and estabhshing the Constitu- 
tion, and were to be recognized in the adoption of 
this fundamental instrument as the original source 
of the newly created Federal powers. This view 
made the whole people a possible depositary of 
some of the powers not granted to the National 
Government, and prevented the inference that the 
States were necessarily the depositary of all such 
reserved powers. 

It is noteworthy, as a matter of history, that 
when President Jefferson was in the Presidency, 
and felt called upon to fill a vacancy in the 
Supreme Court, he appointed Mr. Joseph Story, 
of Massachusetts, a member of the then Repub- 
lican party, evidently with the expectation that 
his view of the Constitution would be opposed to 
that of Chief Justice Marshall. The personality 
and the great ability of the illustrious Chief 



MEANING OF "WE, THE PEOPLE" 7 

Justice, however, exercised great influence over the 
brilHant young Justice, appointed at thirty-two, 
and when he came to pronounce his first great con- 
stitutional judgment as the organ of the Supreme 
Court, in the case of Martin vs. Hunter's lessee, 
in 1816, 1st Wheaton, SM, he announced the view 
of the Court that the Constitution of the United 
States was ordained and estabHshed, not by the 
States in their sovereign capacities, respectively 
represented by the different peoples thereof, but 
by the people as a body of the United States as a 
whole, and that this was the meaning of the 
preamble. This was confirmed by other judg- 
ments of that Court, notably by Chief Justice 
Marshall in the great cases of McCuUoch vs. 
Maryland, 4th Wheaton, 316, and Osborn vs. the 
Bank, 9th Wheaton, 738. All these cases gave 
the Constitution liberal construction in favor of 
the powers of the National Government, and as 
the views expressed were opposed to those of Mr. 
Jeff^erson and the then Republicans, Mr. Justice 
Story was attacked as a renegade of the party. 
His \dews and those of his colleagnies were re- 
garded as most heretical by Mr. Calhoun and by 
his disciples. It is not very important now, except 
from an historical standpoint, to review the dis- 
tinctions that were made before the Civil War in 
this all-absorbing issue, because the view taken by 



8 POPULAR GOVERNMENT 

th-e broad constructionists was vindicated and made 
permanently to prevail by the arbitrament of the 
sword, and the theory of the Federal Constitution 
as a compact between sovereign States has as fully 
disappeared as the constitution of the Southern 
Confederacy itself. 

The use of the words, "We, the people," was an 
indication on the part of the makers of the Con- 
stitution that they thought they were establishing 
a popular government, because a popular govern- 
ment may properly be defined to be a government 
established and maintained by the authority of the 
people. We are in favor of popular government 
because we believe that the fact that the people 
govern themselves will make them constant in its 
support and will secure obedience to the laws their 
representatives make and the executive they elect. 
This is likely to make the government strong and 
its protection of its individual citizens effective. 

Moreover, experience sustains the view that 
every class of citizens in a community — and by a 
class I mean those who are similarly situated and 
conditioned — is more certain to look well after its 
own real interests than any other class, however 
altruistic. Hence a government in which every 
class has a voice, that is, a popular government, 
is more certain to do justice to each class and 
make proper provision for its welfare. This has 



MEANING OF "WE, THE PEOPLE" 9 

only one exception, and that is, where a class has 
not intelligence enough to understand its own 
interest or rights. 

Now popular government is not an end. It is 
a means of enabhng people to live together in 
communities, municipal, state and national, and 
under these conditions to secure to each individual 
and each class of individuals the greatest measure 
of happiness. It was to aid this ultimate purpose 
that our Constitution was adopted. It was not 
thought by the people who made and ratified it 
that the majority could always be trusted cer- 
tainly to accord to the individual just and equit- 
able treatment in his pursuit of happiness. The 
people, themselves, imposed the restraints upon 
their own poHtical action contained in the Con- 
stitution, the chief of which were the guaranties 
of individual rights. The security of these rights 
and all our civil institutions are nothing but means 
for the promotion of the happiness of the indi- 
vidual and his progress and are to be so regarded. 

I know that the so-called individualistic theory 
of rights and duties has been attacked as not 
broad enough and that pressure is now being 
exerted to introduce into practical jurisprudence 
the view that class or collectivist rights and 
obligations should be more clearly recognized and 
enforced at the expense of the present so-caUed 



10 POPULAR GOVERNMENT 

rights of the individual. I am not now consider- 
ing this issue and am not intimating any opinion 
on it. Whatever the proper view, whether we 
should continue to preserve individualism intact, 
or qualify it by collectivist amendment, the ulti- 
mate purpose of government and its limitations 
must be conceded to be the same, the promotion 
of the happiness of the average individual and his 
progress, whether this be effected by exalting indi- 
vidual independence, or by giving more power to 
society to secure greater happiness to a greater 
number of individuals. 

The effect of these restraints to secure justice 
and right for the individual reacts in favor of the 
strength and permanence of the government of 
the people. The tyranny and injustice of a 
majority would be certain in the end to stir those 
individuals suffering it to revolt, and would lead 
to a change in the form of government, perhaps 
to a one-man control. Such was the fate of 
Greece, of Rome, and of France. The rule of the 
people which is just and equal to all should endure 
forever. Of course this permanence reciprocally 
promotes individual happiness. 

If, then, the distinction between what is the end 
of government and what are the means by which 
that government is to be bettered and may more 
nearly reach its end, is kept clearly in mind, we 



MEANING OF "WE, THE PEOPLE" 11 

shall eliminate from the difficulties of political 
discussion a good many fetishes that now lie in 
wait for the unsophisticated reformer. 

The preamble of the Constitution uses the 
phrase "We, the people of the United States," and 
I have been attempting to state the advantages of 
a popular government and its purpose. What is 
its essence? What is meant by "We, the people"? 
What is meant by "popular government"? If 
these terms are to be construed as referring to a 
government by all the people, then there never has 
been, and there never will be, and there never 
can be, a truly popular government, because it is 
impossible that all the people, i.e., all the indi- 
viduals in the community, municipal, state or 
national, should have either the capacity or the 
opportunity to take actual part in its govern- 
ment. This is a fact the importance of which has 
not always been fully recognized. 

Who were "the people" in the days when this 
Constitution was adopted? They were not the 
whole 4,000,000 of those who lived in the thirteen 
colonies. At least that 4,000,000 did not select 
the members of the Constitutional Convention. 
The members of that Convention were selected in 
popular colonial conventions in some colonies and 
by the legislatures of other colonies, and in the 
latter some of the delegates were confirmed by 



12 POPULAR GOVERNMENT 

popular conventions. Now who voted to select 
the delegates for those conventions or legisla- 
tures? They were the qualified electorate of each 
colony, or at least a majority of the members of 
the electorate who took the trouble to vote. We 
know from the colonial laws who were qualified to 
vote, and we have an estimate made by those who 
have investigated it as to the ratio of that part 
to the total population. 

Generally in the thirteen colonies, those who 
could vote were limited to men who owned a cer- 
tain amount of property or paid a certain amount 
of taxes, and in some of the States they were 
required to be believers in the Protestant Christian 
religion. 

In New Hampshire the voter had to be a Prot- 
estant and a tax-payer. In Massachusetts he 
had to be possessed of an income from a freehold 
estate of £3 a year, or to own a personal estate 
worth £60. In Connecticut he was obliged to have 
an annual income of $7 from a freehold estate, or 
real estate rated on the tax list as worth $134. In 
New York he was required to have a freehold 
estate of £30, or a house rent of 40s. In New 
Jersey any person, male or female, black or white, 
native or alien, was permitted to vote, if only he 
or she owned real estate worth £50. In Maryland 
the voter had to have in the county in which he 



MEANING OF "WE, THE PEOPLE" 13 

wished to vote a freehold of £50, or personal prop- 
erty of £30. In Virginia the voter had to own 
twenty-five acres of land of cultivated property, 
and a house at least twelve feet square on the 
foundation, or he had to have fifty acres of wild 
land, or a freehold or estate interest in a lot in 
some of the towns estabhshed by law. In North 
Carolina the voter had to be a tax-payer. In 
South Carolina the voter had to be a free white 
man, acknowledging belief in God and in a future 
state of reward and punishment, and had to Hve 
one year in the state, have a freehold of fifty acres, 
or own a town lot, or have paid a tax equal to the 
tax on fifty acres of land. In Georgia any 
mechanic, any male white inhabitant owning £10 
of property and paying a tax not only might 
vote but had to vote, under penalty of £5. 

The estimate of historians is that out of the 
4,000,000 of people in the thirteen colonies, includ- 
ing slaves, women and children and other citizens 
who were non-voters, there were only 150,000 
qualified to vote, and therefore we may properly 
say, that in one sense the people whose delegates 
and representatives framed the Constitution of the 
United States were not one twenty-fifth part of 
all the people of the United States at that time. 
Judge Sharswood, a great jurist of Pennsylvania, 
said: "It is to be remarked that in the various 



14 POPULAR GOVERNMENT 

nations, even in the representative government of 
the United States, the consent of the entire body 
of the people has never been expressed, as 'the 
people' comprise all of the women and children 
of every age and class. But they were not *the 
people' in the same sense, until the Constitution 
was adopted. A certain number of men have 
assumed to act in the name of all the community." 
(1 Sharswood Blackstone, 147 N. 11; 2 Wilson's 
Works, 566; Andrew's American Law, Sec. 122.) 
Yet the Government of the United States became 
the typical popular government of the world and 
has been made the chief model of many popular 
governments since established. 
/ The political history of each State since the 

Constitution was adopted shows a gradual enlarg- 
ing of the electorate so as to eliminate religious 
and property qualifications, and to reach man- 
hood suffrage. Until recently the electorate in 
each State was limited to males over twenty-one 
years and the result has been, as seen in the presi- 
dential elections when the vote was the highest, 
that the qualified electorate in the United States 
has not amounted to more than 20 per cent of 
the total population. If this number is to be 
increased by allowing women to vote, it would 
probably increase the percentage of the electorate 
to 35 or 40 per cent of the total number of the 



MEANING OF "WE, THE PEOPLE" 15 

people resident in the United States. As we must 
govern by a majority or a plurality of those who 
have the right to vote, we may properly say that 
this must always be a government by a minority 
of all the people of the country. 

Th^se are mathematical facts that no one can 
escape, and it thus appears that there is a large 
part of the people who are governed and in whose 
interest government is maintained, to whom it is 
impossible safely to extend the electoral franchise. 
No one proposes to do so. No one proposes, for 
instance, to extend the electoral franchise to chil- 
dren or minors, to ahens who live here and do not 
wish to be naturalized, to aliens who live here and 
who can not by law be naturalized, to the insane, 
or to those who have shown themselves by crime to 
be unfitted to vote. 

These facts do not make against government 
by the people as we understand it. It only shows 
that approval of so-called popular government is 
not worship of a fetish. We are not in favor of 
the rule of all the people as an end desirable in 
itself. We love what is called democracy not 
because of the name but because of what it accom- 
plishes. We are in favor of a rule by as many of 
the people in a democracy as will secure a good 
government and no more. The result will be good 
because it secures the happiness of the individual. 



16 POPULAR GOVERNMENT 

Government is a means to an end, and the means 
are to be selected on account of their adaptability 
to the end. 

I will illustrate the point I am making if I say- 
that women should be accorded the privilege, and 
given the duty, of voting, not because they have an 
inherent and inahenable right to vote, but because, 
by giving them the franchise, their own welfare or 
that of the whole body of the people will be 
thereby promoted. If the advocates of female 
suffrage can show that they, as a class, have been 
unjustly prejudiced by governmental measures or 
by lack of them, and that they could remedy this 
by their vote, or if they can show that, by the 
extension of the franchise to women, either the 
general Government would be better or stronger, 
or the existing electorate would be improved in its 
average moral tone, its intelligence, its political 
discrimination, its patriotism and attention to 
poUtical duties, they make their case ; and they do 
so because they thus establish that the addition of 
them to the electorate is a useful means to secure 
the happiness of the individuals. 

While it is impossible to escape the proposition 
then that we have not a Government by all the 
people, in the sense that we do not include in those 
who exercise the power of control all the people, 
or a majority of them; nevertheless, in fixing our 



MEANING OF "WE, THE PEOPLE" 17 

federal franchise we do seek to make our voters 
in a true sense representative of all the people. 
The theory of manhood suffrage is that after a 
man becomes twenty-one he represents in a true 
sense some of the same class as himself — ^that is, of 
those similarly situated — ^who are related to him. 
The husband represents his wife; the father the 
children; the brother the sister, and even though 
we make our electorate as wide as possible by 
giving all women of adult age the franchise, we 
must still have the principle of representative 
authority in the practical carrying out of popular 
government. Jameson Constitutional Conven- 
tions, Sect. 335, 336, 337; Andrews' American 
Law, Sect. 122. 

The theory of an original contract between 
those who made the Government and those who 
were to live under it, in which each member gave 
up some so-called natural rights and consented to 
the exercise of governmental authority, on con- 
dition that he enjoyed certain other rights under 
the protection of the Government, is of course not 
a true statement of what has happened in history. 
It was advanced by Rousseau for the basis of a 
rightful government. As a working formula the 
theory is sometimes useful to test the correctness 
and justice of institutions which are made part of 
governmental machinery. When we all theoreti- 



18 POPULAR GOVERNMENT 

cally consent to, and actually acquiesce in, a popu- 
lar government, we say to ourselves, "This is a 
good government, and we can count on its efficacy, 
its honesty and its high ideal, and on its practical 
protection of our rights because the governing 
body, to wit, the electorate, is composed of citi- 
zens of varying intelligence, self-restraint and 
patriotism, the average of whose political capa- 
city is sufficiently high to justify the belief that 
the majority will in its poHtical control be fairly 
wise, prudent and patriotic." Now if we find that 
the burden involved in the political activity 
legally required of the average citizen, leads a 
large number of the electorate and those the more 
intelligent utterly to neglect their poHtical duty 
and not to vote, because there are too many elec- 
tions, or because they feel unfitted to vote on the 
subjects submitted, with the result that a minority 
of the electorate of less average intelligence and 
capacity than the whole is in control, it seems to 
be clear that the man who is held to consent to this 
form of government is not receiving the benefit of 
the government which he had a right to expect. 
What is the remedy for this ? The Government 
should either adopt measures which will compel the 
delinquents to vote, or we must change the law by 
calling on the electorate for political action less 
frequently, so that with a lighter burden they 



MEANING OF "WE, THE PEOPLE" 19 

may be induced to carry it and give the attention 
that the interest of the State requires from them 
in the matter of elections. 

Can we meet this difficulty by requiring all the 
citizens who can cast a vote, to vote, under 
penalty? This has been attempted in Switzerland 
and Belgium. I am not fully advised as to the 
operation of such a law in Belgium, but in 
Switzerland its result has not been satisfactory. 
One man can take a horse to water, but fifteen can 
not make him drink. The men who were com- 
pelled to vote in Switzerland on issues referred 
to them under their referendum law, voted blanks 
in large percentage, because either they were not 
interested, or did not feel that they had knowledge 
enough to express an opinion, or for some other 
reason. The difficulties as to enforcing such a 
remedy, therefore, would seem to remit us to the 
only other one that I know of, which is that we 
should limit the political duties of the average 
elector to those which experience shows he is likely 
to perform. This will prevent too numerous 
elections. It will lead to a government more 
representative and less direct, and it will make 
possible the short ballot, because it will limit the 
elective offices to a small number and will impose 
the responsibility of appointment of all other 
officers upon the few who are elected. 



20 POPULAR GOVERNMENT 

A system which leads to a continuous neglect by 
a maj ority of the electorate of their political 
duties, conclusively shows its unfitness. It is con- 
demned — negatively, it is true, but none the less 
emphatically — by the very electorate upon whom 
the safety of the Government depends. The 
Government becomes one of an active minority. 
Experience does not show that such a minority 
is the wisest part of the electorate or the part 
best adapted to secure good government. 

Of course the argument advanced at once is that 
men who do not care to take part in the govern- 
ment and do not care to discharge their political 
duties must be regarded as forfeiting their right 
to do so and must be held responsible for all the 
ills that come. But the difficulty of this argument 
is that it ignores altogether the rights of others 
who do perform their political duties and who 
vote on every occasion required, and also that 
large part of the people who are not entitled to 
vote at all. Both classes have a vital interest in 
the character of the Government which is imposed 
on them, and may justly insist that in such a 
Government it is the general character of the 
whole electorate that they have a right to rely 
upon, to secure to them proper and efficient 
administration and the maintenance of right and 
justice. 



MEANING OF "WE, THE PEOPLE" 21 

It is altogether an error to assume that a man 
who neglects his own political duties is only injur- 
ing himself. He is injuring everybody who has a 
right to the exercise by him of his intelligence and 
experience in the decision of the questions pre- 
sented to an electorate. It is a just cause of com- 
plaint against the laws if they provide electoral 
duties so heavy that they necessarily discourage 
his political activity. 

Of course the effort should be to strike a mean. 
It may be necessary, where his duty is light and 
his neglect of his duty is unreasonable, to insti- 
tute personal penalties against an elector. But 
where the practical working of the law is to keep 
away from the polls a majority of the electors, 
such penalties would be impracticable, and it is 
only fair to assume in such a case that the duties 
imposed are unreasonable and should be entrusted 
to representatives. When we find, as we often do, 
in the same election a large vote for candidates 
and a small vote on legislative issues, it is the best 
evidence that a majority of the electorate have 
neither interest nor information enough to lead 
them to vote on such issues, but do feel themselves 
competent to select representatives for the 
purpose. 



n 

The Representative System 

In my last lecture, I sought to show that we 
should not worship democracy or the rule of the 
people as a fetish, that government of any kind 
is only a means to an end, that the end is the 
happiness of each individual, and that the reason 
why we favor popular government is because we 
believe that it is more effective in securing the 
happiness of each individual and each class of 
individuals than any other. I invited your atten- 
tion to the fact that there is, and can be, no truly 
popular government, in the sense that all the 
people have a voice in the government as part of 
the electorate; that a great many more than a 
mere majority must always be excluded from the 
electorate, and this, for the purpose of adapting 
the government better to the end in view ; that on 
the same ground the political duties of each 
elector ought to be made light enough to secure 
the attention and activity of the ma j ority, so that 
the average intelligence of the electorate may 
exert its proper influence at the polls, and that 
a system which wearies the mass of voters and 



THE REPRESENTATIVE SYSTEM 23 

keeps them from the polls is condemned by that 
fact. 

These premises were necessary in my judgment 
to a proper consideration of the question of the 
wisdom of the changes in our present government, 
involved in the adoption of the devices known as 
"the initiative, the referendum and the recall." 
These are proposed either as a substitute for, or 
by way of improving the representative system 
of, popular government. Before coming to a 
detailed description and discussion of the new 
devices, I believe it to be germane and relevant to 
describe the representative system and to point 
out why it was adopted and what purpose it 
served. 

Mr. Root, in one of his lectures at Princeton, 
says of the system : 

"The expedient of the representation first found 
its beginning in the Saxon Witenagemot. It was 
lost in the Norman conquest. It was restored step 
by step, through the centuries in which Parliament 
established its power as an institution through the 
granting or withholding of aids and taxes for the 
king's use. It was brought to America by the 
English colonists. It was the practice of the 
colonies which formed the Federal Union. It 
entered into the Constitution as a matter of 



24 POPULAR GOVERNMENT 

course, because it was the method by which 
modem liberty had been steadily growing stronger 
and broader for six centuries as opposed to the 
direct, unrepresentative method of government in 
which the Greek and Roman and Italian republics 
had failed. This representative system has in its 
turn impressed itself upon the nations which 
derived their political ideas from Rome and has 
afforded the method through which popular 
Kberty has been winning forward in its struggle 
against royal and aristocratic power and privi- 
lege the world over. Bluntschli, the great Heidel- 
berg publicist of the last century, says : 

" 'Representative government and self-govern- 
ment are the great works of the English and 
American peoples. The English have produced 
representative monarchy with parhamentary 
legislation and parliamentary government. The 
Americans have produced the representative 
republic. We Europeans upon the Continent 
recognize in our turn that in representative gov- 
ernment alone lies the hoped-for union between 
civil order and popular liberty.' " 

The problem of popular government is difficult. 
In a pure one-man despotism, the machinery is 
simple. It needs only to express the will of one 
individual. In a limited monarchy in which the 



THE REPRESENTATIVE SYSTEM 25 

power of government is divided between the King, 
at the head of the state, and representatives of 
different classes in the community, it is less easy to 
frame a satisfactory plan. Finally, when the 
King and privileged classes are dispensed with, the 
complications of government are increased. The 
problem in a popular government is so to arrange 
its organization that, with due protection to indi- 
vidual and minority rights, which experience has 
shown to be useful to society and its progress, the 
expressed will of a majority of an electorate may 
be truly interpreted and executed in effective 
action by the government. The business of admin- 
istering and legislating for a government is not 
an easy task. Men of experience in governmental 
affairs and special knowledge are certainly better 
able to carry it on than those who have neither. 
In ordinary life, when we wish a man to draft a 
wiU, or a contract, or a deed, or some legal docu- 
ment that is to meet legal requirements, we employ 
a lawyer. When we would have a member of our 
family who is ill attended by anyone, we employ a 
physician. When we would have our children 
educated, we employ professional teachers. When 
we wish to build a bridge or a road, we employ 
professional engineers. When we would build a 
house, we employ an architect and a competent 
contractor and carpenter. When "We, the 



26 POPULAR GOVERNMENT 

people," have an object in view, we are generally 
lacking in the knowledge and practical experience 
to devise a practical measure to secure it. It 
would seem wise on our part to employ in such 
matters men who have the special knowledge and 
experience enabling them by amendment and dis- 
cussion to shape measures that will receive the 
judicial interpretation that we wish to have them 
bear, and to employ others who know how to 
enforce them. 

Take the question of currency and banking. 
We know generally that we would like to have a 
currency issued under a plan automatic in opera- 
tion, by which the volume shall increase to meet 
the wants of trade in times of prosperity and 
expansion, and shall be reduced when the condi- 
tions of business require less. If there is too little 
currency in circulation at times when the timidity 
of people lead them to hoard it, we are likely to 
have a money panic that causes a disastrous halt 
in business, and if, at other times, we have too 
much idle currency, its unnecessary volume may 
lead to unhealthy speculation and unwise invest- 
ments. In drafting such a law and its enactment, 
we should have men representing us in Congress 
who by reason of their experience and their studies 
and their discussions and their knowledge of 
government finance and banking can properly 



THE REPRESENTATIVE SYSTEM 27 

prepare, discuss and enact the law. It is obvi- 
ously impossible for the electorate of fifteen mil- 
lions to meet together and to deliberate with any 
hope of reaching a satisfactory conclusion as to 
such legislation. 

As government increases in its functions — and 
the tendency of modern times is to increase the 
variety of the functions of government — the 
necessity for the employment of agents who have 
a specialized knowledge in carrying out such new 
governmental functions is much greater than 
where the oiSce of government was limited, as 
Jefferson would have limited it, largely to the 
preservation of order and the administration of 
justice — that is, to a simple police system. What 
is true in respect to legislation is equally true as 
to the selection of governmental administrators to 
execute the laws. In the maintenance of a modem 
government, it is necessary to employ a vast 
number of public agents. In the Federal Gov- 
ernment, the number runs up into the hundreds 
of thousands. Now it is obviously impossible for 
the 15,000,000 of voters, or a majority of that 
body, carefully and intelligently to select the 
hundreds of thousands of those who are to execute 
the laws and the general policy determined by an 
election. Therefore, our Constitution provides 
for the appointment of all of these officers, and 



28 POPULAR GOVERNMENT 

that chiefly by the President, who, representing 
all the people, does the best he can to secure good 
appointees. 

This is a representative democracy, in the sense 
that the people ultimately govern, but they make 
their government effective by the use of competent 
agents whom they elect as their representatives. 

What the duty of the representative is, of 
course, has always been a subject of discussion. 
Undoubtedly when a man permits his name to be 
submitted to the people as a candidate for their 
suffrages, with the announcement, either by him- 
self or through a party, that he is in favor of 
certain governmental policies to be embodied in 
executive or legislative action, he is bound to con- 
form to those policies or is guilty of deceit. But 
in the discharge of the functions of a representa- 
tive, it often occurs that issues arise which were 
not the subject of discussion at the time of the 
election, and it often occurs also that even though 
the general object was the subject of discussion, 
the particular means to be selected furnished so 
complicated a question that it played no part in 
the election. Under such circumstances, I con- 
ceive that the representative is to act on his own 
best judgment, even though it may differ from 
that of many of his constituents. 

This was the view that Edmund Burke took, as 



THE REPRESENTATIVE SYSTEM 29 

shown in his letter to his Bristol constituents. 
Indeed, Burke went further and insisted that a 
member of ParHament elected by a district, when 
elected, ceased to be the representative of the 
people of that district only and became a repre- 
sentative of the whole Kingdom. I fully concur 
in that view. Members of Congress owe their 
allegiance first to the people of the whole com- 
munity whenever there is a diiFerence between the 
interest of the country and that of the district. 
The representative ought not to be the mere 
mouthpiece of his constituents. He is elected 
because presumably he is well fitted to discharge 
the particular duties in respect to which he is to 
occupy a representative capacity, and he knows 
more about them than his constituents. In carry- 
ing out their general purpose, in accord with his 
promise, he is still within his authority if he 
selects his own means of executing that promise 
according to his conscience. 

Again, popular government is impossible with- 
out parties. If you have 15,000,000 voters, and 
every voter is going to have a different view, or 
every voter differs from every other voter on 
something, and so they do not agree politically on 
anything, you will have a chaos that will result in 
simple negation. In a proper system of party 
government, the members of each party must 



so POPULAR GOVERNMENT 

agree on certain main doctrines in respect to 
governmental policy and yield their views on the 
less important ones, in order that they may have 
united action, and in order that these main and 
controlling doctrines, when the party is success- 
ful at the election and controls the Government, 
may furnish the guide for governmental action. 
But parties can not be organized and can not give 
expression to their views without having leaders, 
captains, lieutenants and file leaders, without 
taking the advice of those leaders, and without 
being influenced by their leadership. 

Parties thus in turn adopt the representative 
system, and the people of the parties appoint dele- 
gates to conventions that are supposed to express 
the party will in the selection of candidates and 
the declaration of principles. The leaders of the 
party, the delegates who represent the people of 
the party, meeting in convention, are charged 
with the responsibility of nominating fit men for 
office and of adopting principles that will unify 
the party and will properly appeal for the sup- 
port of the entire people. 

This is the way in which our representative 
government down to within a few years has been 
carried on, not onl}^ in the general Government, 
in the State governments, but also in the organi- 
zation and maintenance of parties ; and there are 



THE REPRESENTATIVE SYSTEM SI 

but few who will not admit that theoretically it is 
a plan admirably adapted to the creation of 
efficient government by competent representa- 
tives, carrying out in good faith the general pur- 
poses of the party which has received the mandate 
of government from the majority of the electo- 
rate. 

We have had 125 years of this system, but now 
we are told that it has failed, and that either it 
must be changed in a radical way and abolished, 
or else it must have a supplement which shall 
correct its evils and give to the people and all the 
people a more direct control of the laws passed, 
and of the executive action taken. What is the 
reason and what the necessity for this change? 
I wish to be as fair as I can in the statement of the 
arguments in its behalf. Many books have been 
written to show the growth of capitalistic con- 
trol, by corrupt means, of State legislatures and 
other local tribunals in which and through which 
charters and special privileges have been voted. 
They set out in detail the political influences 
which railroad and other great public utility com- 
panies have been able to exercise in politics. 
From 1865, immediately after the war, until 1900, 
there was a remarkable expansion of population 
and commerce. The movement did not take place 
in the South until the eighties, or later, but cer- 



32 POPULAR GOVERNMENT 

tain it is that from 1880 to 1900, in the prosperity 
and expansion that manifested itself on every 
hand, the whole attention of nearly all the people 
was devoted to commercialism. I remember in 
1878 when I was graduated from Yale College, 
the Class of 1853 had its twenty-fifth anniversary, 
and President Andrew D. White, of Cornell, a 
member of the class, delivered an address. He 
took for his subject "The Commercial Spirit," and 
he prophesied, if it were to continue unabated, the 
evils which have come. By seizing the opportuni- 
ties which the corporation laws in various States 
offered, combinations were increased and added 
to, and became, in the flush times of the McKinley 
Administration, after the hard times of the 
Cleveland Administration, all commanding in busi- 
ness, in politics, and, it would seem, in society. 
I am the last one to minimize the critical nature 
of the conditions which prevailed in poHtics and 
business and society after the Spanish War, and 
which seemed to have crystallized into a rigid 
control of all by great business combinations 
which could not be shaken. Then there arose a 
protest, or rather a chorus of protests, which 
called public attention to the danger that was 
confronting the people and their government in 
the control of those artificial creations of the 
law which circumstances had fostered and per- 



THE REPRESENTATIVE SYSTEM 33 

mitted to grow into Frankensteins as they were. 
Leaders arose and led a popular crusade to 
destroy the undue power of wealth in politics, and 
to bring these great quasi-public corporations 
within the regulative influence of legislative and 
executive action. 

The indignant spirit of the people thus aroused 
is what has prompted the demand for a change 
from a representative government to one in which 
the people are to act directly and immediately in 
legislative and executive matters. That the occa- 
sion for the general alarm was justified, no one 
who has studied the situation can deny. That we 
were thus saved from the continued corrupt and 
subterranean control of legislatures and other 
depositaries of the privilege-granting power, 
every careful observer must admit. We should 
rejoice as patriots from the bottom of our hearts 
for this popular rising, even though it has pro- 
jected these new questions into politics and has 
for the time being raised queries as to the wisdom 
of our present form of government. The incon- 
veniences and the possible excesses which may come 
from the rousing to action of a leviathan like the 
people are inevitable. The advantage derived 
from their quickened conscience, however, is worth 
all the incidental mistakes or injustice that may be 
done, before the sobering eifect of experience pro- 



34> POPULAR GOVERNMENT 

duces a reaction carrying conditions back, not to 
the abuses of old, but to that point where the 
original movement might wisely have ended. 

The initiative, referendum and recall were 
proposed in order to cHnch the reform I have been 
describing. It was thought that they were 
instrumentalities which would prevent forever a 
recurrence of the abuses. This result, if it could 
be attained, would certainly be real progress. 
The advocates of these new institutions, confident 
of their efficacy, therefore denominated them as 
progressive measures, and themselves as Pro- 
gressives. 

There is another form of progressivism which 
calls for notice here. It has grown out of the 
conditions I have referred to, and operates not 
only upon the collective conscience of the public 
but also upon that of individuals who have come 
to see clearly the folly of devoting themselves 
exclusively to the mad chase for money and to 
realize the greater happiness they can attain in 
making themselves useful to their less fortunate 
brethren. The accumulated wealth has created a 
leisure class that recognizes, in the opportunity 
that their circumstances afford, a responsibility 
to society to lessen the burden and suffering of the 
poor and the oppressed under our present eco- 
nomic and social system, and render opportunities 



THE REPRESENTATIVE SYSTEM 35 

for self-betterment in society more nearly equal. 
There has arisen, as a reaction from the commer- 
cial spirit, a greater social consciousness. The 
organization of social settlements, the expansion 
and increased effectiveness of charitable organiza- 
tions and the greater social responsibility of men 
of wealth — already alluded to — manifest a stimu- 
lated fraternity of feehng among members of 
society toward each other. 

This has led to a demand for increasing the 
functions of Government to relieve the oppressed 
and the less fortunate in society. The laissez 
faire school would have opposed such functions as 
paternalistic. Undoubtedly, the Government can 
wisely do much more than that school would have 
favored to reheve the oppressed, to create greater 
equahty of opportunity, to make reasonable terms 
for labor in employment, and to furnish vocational 
education of the children of the poor. But on 
the other hand, there is a line beyond which 
Government can not go with any good practical 
results in seeking to make men and society better. 
Efforts to do so will only result in failure and a 
waste of public effort and funds. But many 
enthusiasts, whose whole attention has been so 
centered on the poverty and suffering in cities or 
elsewhere as to lead them to disregard the general 
average improvement of the individual in the com- 



S6 POPULAR GOVERNMENT 

munity in comfort of life and happiness, have lost 
their sense of due proportion and spend their 
energies in pressing forward legislative plans for 
the uplift of the suffering and the poor and for 
the mulcting of the fortunate, the thrifty and the 
well-to-do that are impracticable and will only 
result in defeat, and increased burden of taxation. 
This attitude in favor of such measures among 
the well-to-do, and the propaganda they have 
made in unjust denunciation of general social and 
economic conditions, have found ready response in 
the classes among whom penury, want and mis- 
fortune exist. 

The elements I have been describing have 
worked together to produce a school of political 
philosophers and a large group of followers who 
call for a change in the fundamental structure of 
our Government which shall give to the majority 
of those voting immediate and direct control of 
new legislation and immediate and direct power to 
remove all limitations which the fundamental law 
may present, with a view to the adoption of legis- 
lation supposed to be needed to carry out the 
three purposes : first, to prevent the corruption of 
poHtics by corporate wealth; second, to further 
equality of opportunity, to alleviate penury, want 
and social and economic inequalities and injus- 
tices, and third, to change or qualify the right of 



THE REPRESENTATIVE SYSTEM 37 

property so as more nearly to equalize property 
conditions. 

The plans of this new school of progressives 
involve much in their general purposes that all 
good men sympathize with; but the methods they 
propose and the bitter class spirit they encourage 
are dangerous in the extreme, and if carried to 
their logical result will undermine just and endur- 
ing popular government. We all sympathize 
deeply with a purpose to destroy the possibility 
of plutocracy and we welcome the quickened social 
consciousness, but because we object to the pro- 
posed remedies, and insist that they are sure to 
fail and will lose for all the people the solid 
foundation for safe progress in our present form 
of government, we are relegated to the position 
of reactionaries, and of men who do not sympa- 
thize with progress. Those of us who are thus 
unjustly classed must be content to be so until 
vindicated by the event. But we must fight for 
our principles and maintain them without fear, 
because unless we do, as I verily believe, our form 
of representative democracy will be destroyed and 
its power to aid and maintain the happiness of the 
individual will cease. 

There is nothing to show that all legitimate 
governmental purposes sought by the so-called 
Progressives may not be promoted and brought 



88 POPULAR GOVERNMENT 

about under the representative system. Admit- 
ting that it may be somewhat more slow in its 
results, it will insure wiser action in detail because 
of greater deliberation. Great reforms should not 
be brought about overnight. They need time. 
They should be marked by careful consideration. 
It is said that the representative system is a 
failure because it gave rise to these evils. Of 
course the evils did come and they came under the 
representative system, and it is true that, in the 
working out of the political evils, poHticians 
adopted means which were fitted to succeed under 
the representative system. But it does not follow 
that politicians might not, if we had the other 
system, address themselves to its weaknesses and 
bring about a result quite as disheartening. 
The truth is that what we all utterly ignore in 
the growth of the abuses which have given rise 
to this demand for a change in the structure 
of the government is that the real defect, deeper 
down than mere machinery, was the sluggishness 
of the people and a sort of tacit sympathy of the 
people with those who were promoting the expan- 
sion and the material progress of the country in 
which the people expected to share. People voted 
without hesitation bonds for the construction of a 
railroad equal to many thousand dollars a mile, 
to be paid for by the county or some other local 



THE REPRESENTATIVE SYSTEM S9 

subdivision, in order to secure better transporta- 
tion in that vicinity. Then when the railroad was 
built, and the people had to pay the bonds, the 
whole public attitude was changed and the bitter- 
est antagonism to the railroad company was 
shown. This is human nature. First, in order to 
resist injustice, then to acquire unjust advantage, 
the railroads and other francliise holders used 
corrupt means. The continued success of such 
methods with state legislatures and municipal 
councils was possible only because of the original 
sympathy of the people with those building up the 
country by their investments and enterprises, and 
of their unwillingness at that time to devote proper 
care to their political duties in selecting and watch- 
ing legislators and councilmen. In other words, 
instead of blaming the character of the representa- 
tive system for recent conditions, we must put 
the blame where it belongs and not upon a system 
of government that has stood the test of experi- 
ence for centuries as the best and wisest means for 
giving effect to the popular will. Of course, the 
means used to make corruption successful for a 
time were cunningly adapted to take advantage of 
the prominent features of the representative 
system. The promoters of corruption used the 
party convention and the party caucus to further 
their purpose, and they deceived the people as to 



40 POPULAR GOVERNMENT 

the character of their candidates. They might 
have to change their methods under the proposed 
changes to a more direct democracy, but if the 
people neglect their duties in politics the same 
manipulators could learn to turn the new system 
to their use quite as successfully as the old. 

There is no warrant for the assertion that the 
representative system can not be made to serve the 
purposes of honest government and of legislative 
and executive reforms just as well as the new 
devices proposed. 

One of the strongest reasons for saying so is 
what has happened. With the heart of our people 
sound and honest, the dishonesty of their agents 
has awakened them. Under the influence of their 
awakening a wonderful change has taken place in 
every legislative body in the country, and reform 
laws, many of them meritorious and useful, have 
been promptly enacted. Indeed, even where the 
initiative, referendum and recall have been 
adopted under this impulse, it had to be done 
through purely representative government ma- 
chinery. 

If this was the case then, why condemn the 
representative system as not sufficiently responsive 
to the will of the people when aroused to action.'* 

But it is said that the people will be lulled to 
inertia again, and then the corruptionists and the 



THE REPRESENTATIVE SYSTEM 41 

politicians will again be working their evil schemes 
and binding the people as the Lilhputians bound 
Gulliver. This is certainly inconsistent with the 
widespread announcement that there is a per- 
manently aroused public and an awakened social 
conscience. I am glad to believe that the people 
have learned a permanent lesson from bitter 
experience in the necessity for holding their repre- 
sentatives strictly responsible for protecting the 
public in all forms of public grants, whether of 
money, property, franchises or privileges. I hope 
to be able to show that the new devices are more 
likely to produce neglect of the voting part of the 
people to attend to their duties than this repre- 
sentative system under which, by the method of 
what is known as a short ballot, we can lessen the 
electoral duties of the people and secure their 
general attention at moderate intervals for con- 
centrated and effective action. 



Ill 

The Initiative and the Referendum 

I now come to the consideration of the system 
which it is proposed to substitute for the repre- 
sentative system. The new system embraces three 
parts: the referendum, the initiative and the 
recall. Let us take them in their order. The 
referendum, speaking generally, is nothing but a 
reference of an issue to a decision by a popular 
election. It has long been known in the political 
machinery of this Government, and has long been 
used for certain purposes ; and while its operation 
has not been entirely satisfactory, it seems the 
only feasible plan to accompHsh that for which 
it is used. 

In the first place, after a proposed constitu- 
tional amendment has been formulated, discussed, 
amended and modified in some dehberative assem- 
bly, like a constitutional convention or legislature, 
and has been recommended for adoption by the 
convention or legislature, or, as some constitutions 
provide, after it has twice received such examina- 
tion and favorable vote at successive legislative 



INITIATIVE AND REFERENDUM 43 

sessions, it is then submitted to the people for 
them to determine, by a majority vote, whether 
it is to be finally adopted. Under some systems a 
constitutional amendment is not adopted unless a 
majority of all those voting at the election shall 
vote for it. Under other systems, it is enough if 
a majority of those voting on the issue shall be in 
its favor. Of course, if there is no other issue 
pending at the election, and there are no candi- 
dates running for office, then a majority of those 
voting at the election and a majority of those 
voting on an issue are the same, but often at such 
elections candidates for office are voted for, and 
it has usually resulted that the votes for candi- 
dates are largely in excess of those cast on a 
constitutional issue. The difference, therefore, 
between a majority of those voting at the election 
and those voting on the issue is generally a very 
material one. I have no hesitancy in saying that 
I think the requirement that the vote should be a 
majority of those voting at the election is the 
safer and better one. In Minnesota the former 
rule prevails and some four or five amend- 
ments proposed have failed, though more voted 
for them than against them, because the favorable 
vote was not a majority of the total vote cast for 
candidates for office at the same election. It too 
often happens, as we shall see, that the vote on 



44 POPULAR GOVERNMENT 

constitutional issues thus taken awakens so little 
interest that the total vote on the issue is hardly 
more than half the usual vote cast for candidates 
for office. The total vote pro and con on the 
issue is hardly a majority of the electorate, and 
a majority of those voting is thus a comparatively 
small minority of the whole electorate. The con- 
stitution is the fundamental law adopted after 
deliberation, discussion and final vote of the 
people. It embodies the self-imposed restraint 
by the people upon those who act for them in 
passing laws or executing laws or policies. Those 
solemnly enacted restraints that have been tried 
for years, and upon the faith of which so much of 
business and individual action has been based, 
should not be lightly changed, certainly not by 
less than a majority of the electorate. The small 
vote by which in some States the most marked 
changes are brought about in their constitutions, 
does not show the stability in our Government 
which we were wont to think we had, and which gave 
us such pride in the proven efficacy and perma- 
nence of popular rule. Thus in California the vote 
which carried most radical amendments to the 
constitution, with changes of immense importance 
in the structural framework of the State govern- 
ment, was considerably less than that of the vote 
a year before cast for the minority candidate for 



INITIATIVE AND REFERENDUM 45 

the Presidency, who lost the State by sixty thou- 
sand (60,000) and it was less than one-third of 
the total vote for the Presidency. In Ohio there 
were forty-one different constitutional changes 
voted on at a special election in September, 1912. 
The total vote was very little more than 500,000, 
and the prevailing vote was generally less than 
300,000. In the November following the total 
vote was over 1,100,000, showing that these radi- 
cal constitutional changes were effected by less 
than 30 per cent of those electors who turned out 
at a presidential election and considerably less 
than 25 per cent of the total electorate. I have 
already pointed out how important it is that a 
large part of the electorate shall discharge their 
duties, and how unfair it is- that so large a pro- 
portion of the electors avoid elections when they 
concern the adoption of legislative or constitu- 
tional changes. Still, under the systems that have 
prevailed, preliminaries are required of a character 
to advise the whole people of the issue, and delays 
are enforced to secure deliberation. Thus in ,the 
process of adopting such constitutional amend- 
ments, the final action of the people has usually 
been preceded by the detailed discussion, in a 
deliberative assembly like a legislature or a con- 
vention, of every clause and by the proposal of 
amendments of every clause for the purpose of 



46 POPULAR GOVERNMENT 

betterment. The public are advised of the char- 
acter of the amendments by the discussion in the 
assembly or convention, and substantial time 
elapses in which to enable the public to acquire 
knowledge of what is proposed in the change of 
fundamental law. Sometimes, indeed, two years 
are consumed in the necessary preliminaries for a 
constitutional amendment. Where, however, the 
referendum is associated with the initiative, we 
shall see that no such safeguards are provided to 
give the public the benefit of amendment by per- 
sons of experience or of time for information and 
deliberation. 

Second, the referendum has been used for years 
as a condition upon which local legislation enacted 
by a state legislature shall go into effect. For 
instance, when the question is whether a prohibi- 
tion law ought to be put into operation in a 
municipality, district or county, it has become 
frequently the custom on the part of the legis- 
latures to provide that the law shall go into 
operation in such municipality, district or county, 
if, in a local election, a majority of the voters 
lawfully residing therein shall vote in favor of its 
operation — otherwise not. This is what is called 
the local option arrangement, and has the advan- 
tage of making the going into effect of the law 
depend upon the question whether it can be really 



INITIATIVE AND REFERENDUM 47 

enforced. Experience has shown that a law of 
this kind, sumptuary in its character, can only be 
properly enforced in districts in which a majority 
of the people favor the law, and, therefore, favor 
its enforcement; but in a district where the 
majority of the people are opposed to the law, 
and do not sympathize with its provisions, a 
sumptuary law is almost certain to become a dead 
letter. Now every one must recognize the demoral- 
izing effect of the enactment of laws and their 
attempted enforcement and their failure because 
of the lack of public opinion to support the officers 
of the law in attempting such enforcement. 
It ought to be said that localities have interest 
enough in such a local question as liquor selling to 
make the vote much nearer that on candidates 
in a general election. The issue is simple and 
thoroughly understood, it is sharp, and the people 
know their minds. 

Attempts have been made in courts to impeach 
the constitutionality of a referendum law like 
this, on the theory that the legislature can not 
delegate its legislative power to the people with- 
out special constitutional authority. Courts have 
sustained the law, however, on the theory that the 
legislation was the act of the legislature, and that 
the legislature had the authority to impose such 
conditions as to its going into effect as the legis- 



48 POPULAR GOVERNMENT 

lature might choose, and that the question of the 
referendum and the issue in the referendum were 
nothing but the conditions upon which the law 
was to go into effect. 

The referendum has been used in other cases. 
Wherever the local legislative body has the 
power to act in such a conclusive way that the 
people are unable by electing a successor to 
reverse the action, it is a security against pre- 
cipitate or corrupt action to require that there 
shall be a referendum before the action of the local 
body becomes effective. Thus where the legislature 
authorizes a city council to issue bonds, binding 
the municipality to pay a large debt twenty or 
thirty years hence, in such an important matter 
as this, the approval of the people may well be had. 
And so in the issuing of franchises to corporations 
that may not be amended or revoked, for the same 
reason the opinion of the people may usefully be 
invited on the question of the grant before it 
becomes binding. I may add that in such cases 
also, the questions thus referred are simple and 
easily understood and the people can vote with a 
clear idea of what the election means. 

The new school of political philosophers pro- 
poses the referendum for far wider uses than I 
have described. It will be observed, in the instances 
I have mentioned, that the use of the referendum 



INITIATIVE AND REFERENDUM 49 

was voluntary, that is, the legislature could 
invoke its use but they were not compelled to do so. 
The new theory, however, is that we are to have 
a compulsory referendum, that the legislature 
shall be compelled to refer all laws of importance 
to the people, and that this referendum may be 
effected, without the intervention of the legisla- 
ture at all, but through another instrumentality 
which I have mentioned, to wit, the initiative. By 
the initiative is meant an institution under which 
a certain percentage of the voters signing and 
filing a petition in some named state office, are 
enabled to require the state authorities to submit 
for adoption, by referendum to the lawful voters 
of the State, any bill for enactment into law of 
which the petitioners set forth a copy in their 
petition. The percentage of the registered voters 
required to make such a petition effective in many 
of the States is 5 per cent ; in others 8 per cent, 
and in some others is higher, but 8 per cent is 
usually the requirement. Under this system, as it 
is actually employed in a great many States, legis- 
lation of the most complicated character, embodied 
in bills, numbering as high as thirty-five or forty, 
has been submitted at one regular election to the 
people for their consideration and adoption. In 
such cases, if the people by a vote of a majority 
of those voting on each issue shall favor the pro- 



50 POPULAR GOVERNMENT 

posed legislation, it becomes law, and this without 
being subject to a veto by the Governor or to any 
interference or change by the legislature. 

The question is whether this system is one that 
ought to approve itself to the public for general 
adoption. It is argued that, in this way, sub- 
terranean influences of corrupt character can be 
avoided because the whole electorate can not be 
corrupted. It is argued that in this way prompt 
action is secured in deference to popular will, and 
that legislation, beneficial to the public and avoid- 
ing or abolishing special priAdlege, can not be 
obstructed or prevented by the hugger-muggering 
of political bosses acting under the inspiration of 
corrupt corporate managers. 

I do not mean to say that in the early use of 
such a device as this upon legislation, the results 
may not seem to be more directly under the con- 
trol of the people than under the representative 
system when it was being used and abused by cor- 
rupt methods. However, the ease with which the 
so-called pure democracy can be turned to the 
advantage of the corruptionist has yet to be 
shown. His opportunity will be in the failure of 
the majority of the people to perform their 
heavier political duty under the new system, and 
human nature has greatly changed if such oppor- 
tunity will not be improved. With the legisla- 



INITIATIVE AND REFERENDUM 51 

tures now in the chastened condition to which the 
indication of the people has brought them, they 
are not any less responsive in respect of legisla- 
tion which the people desire than the people them- 
selves. More than this, the great advantage under 
the representative system is that it gives room 
for intelligent discussion and amendment, whereas 
under the initiative and referendum such oppor- 
tunity for bettering the proposal and making it 
practical and useful is wholly wanting. Under the 
initiative, those who sign a petition frame the bill 
just as they wish to have it, and then the public 
must accept or reject it. To such an audience as 
this, it is hardly necessary to point out the fact 
that, in the history of legislative measures, the 
original bill is often so changed and perfected for 
the good of the public, and to promote the real and 
beneficial object, that the biU as introduced can 
hardly be recognized in the bill as passed. The bill 
as passed accomplishes its purpose, because it has 
been made over by men whose knowledge fits them 
to frame legislation to accompKsh a particular 
purpose, while the original bill is quite likely to 
have been impracticable and a failure. The 
opportunity for amendment is one of the most 
important steps in securing proper laws. 

Again : Representative government is said to be 
a failure because the people are not capable of 



52 POPULAR GOVERNMENT 

selecting proper representatives, and yet the whole 
system of referendum and initiative rests upon the 
assumed intelligence and discretion of the people, 
sufficient to pass upon the wisdom of the details of 
thirty comphcated bills at one election. The offi- 
cial explanation of these bills in fine print filled a 
pamphlet of 300 pages. Now I submit whether 
the people as a whole may not more certainly 
select honest and intelligent agents to act for them 
in considering and adopting such difficult legisla- 
tive measures than they can exercise a discriminat- 
ing and intelligent choice in respect to the appro- 
val or disapproval of such measures. I commend 
a perusal of the laws submitted to the electors of 
Oregon at the last general election, and if the 
reader does not lay down the book containing 
them with fatigue, confused mind, tired eyes and 
a disgusted feeling, I am mistaken. If it has that 
effect on the reader, consider how much more tired 
and confused the perceptions of the voter of 
average intelligence must be. It is not too much 
to say that only a small percentage have the 
patience to read through the proposed bills, much 
less the knowledge and persistence to learn what 
they mean and decide upon their effect and value. 
We have had societies organized by conscien- 
tious reformers for the purpose of simpHfying 
issues at an election. The platforms of various 



INITIATIVE AND REFERENDUM 53 

organizations have approved what is called the 
short ballot. Now, what is the principle of the 
short ballot? What does it mean? It means that 
the number of electoral offices to be voted on by 
the people shall be reduced to as few as possible, 
and that all other offices shall be fiUed by appoint- 
ment by the few to be elected, so that the persons 
elected may be held responsible by the people, and 
the people may, by selecting a few honest and 
intelligent agents, be sure that all the other officers 
to be appointed will be selected with a care, knowl- 
edge and discrimination that the people have not 
the means of exercising. Now if that is a reform 
that ought to be adopted, does it not necessarily 
foUow that the submission to the people of such 
matters of complicated legislation as have been 
offered to the voters of Oregon and the other 
States where the voters at a general election are 
invited to pass upon a very volume of proposed 
laws, is directly in the teeth of the principle upon 
which the short ballot is founded? Is not the 
advocacy of the short ballot a conclusive admission 
that a system by which a small percentage can 
foist upon an unoffending electorate the burden of 
passing on complicated and voluminous legislation 
is to be avoided? An examination of a ballot in 
Oregon, or in South Dakota, or in Colorado, 
yards long and feet wide, will at once convince any 



54 POPULAR GOVERNMENT 

reasonable man that the system which makes such 
a ballot possible is a travesty upon practical 
methods of ascertaining the dehberate will of the 
people either in legislation or in the selection of 
candidates. 

Again, the people themselves have indicated 
that they are far better able to select candidates 
than they are to pass upon complicated questions 
of legislation, and they have done so by the with- 
holding of expression of any opinion at all upon 
these many legislative issues that have been sub- 
mitted to them in the same elections where they 
have in full numbers expressed their opinion on the 
selection of candidates for office. This very act 
of the people themselves shows that they think 
that the intricate legislative issues submitted are 
not proper questions to be submitted to a popular 
election. Could any system be devised better 
adapted to the exaltation of cranks and the 
wearying of the electorate of their political duties 
than the giving of power to 5 per cent or even 8 
per cent of the voters to submit all the fads and 
nostrums that their active but impractical minds 
can devise, to be voted on in frequent elections? 
They invented this initiative in Switzerland and 
when a considerable percentage of voters refused 
to vote on the issues presented, they imposed a fine 
for failure to vote, with the result that the voters, 



INITIATIVE AND REFERENDUM 55 

to avoid the fine, cast their ballots, but they were 
blank. Examine the record in referendum states 
and you will find that the total vote on legislative 
referendums varies from 75 per cent to 25 per cent 
of the votes cast for candidates at the same 
election. 

I have a letter from Governor Buchtel of Colo- 
rado, chancellor of the University of Denver, in 
respect to the initiative and referendum in Colo- 
rado and Denver, which was written in response 
to my inquiry as to how the system was working 
there. It is as follows : 



'^University of Denver, 
Denver, Colo., April 25, 1913. 

My dear Friend : 

I send you herewith report on two state elec- 
tions and two city elections, held recently, in 
which the actual vote for initiated measures is 
shown in connection with the available vote. It 
is all very depressing. We changed our form of 
government here in the city of Denver with a 
total vote of 26,842, when the available vote was 
somewhere between 65,000 and 70,000. The fact 
is that our people are disgusted with these pro- 



56 POPULAR GOVERNMENT 

grams and so they do not vote at all. We had a 
day for registration yesterday. 

Most faithfully in high regard, 

Henry A. Buchtel. 

The General Election was held on November 5, 
1912. 

The vote for Presidential Electors was 265,991 
Average for other officers about . . 260,000 

The votes on Initiated Measures at this same 
election were as follows: 

Initiated Constitutional Amendment 
for State-wide Prohibition: 

For 75,877 

Against . . . . . . . 116,774 

Total . 192,651 

Initiated Constitutional Amendment. 
Recall from Office: 

For . 53,620 

Against 39,564 

Total 93,184 



INITIATIVE AND REFERENDUM 57 

Initiated Constitutional Amendment. 
Recall of Judicial Decisions: 

For 55,416 

Against . 40,891 

Total 96,307 

Referred State Law. 

Building Moffat Tunnel: 

For 45,800 

Against 93,183 

Total 138,983 

City of Denver Election, May 21, 1912 

The vote for Mayor was ... . 71,922 
Charter Amendment: 

Playground Commission, total . . 34,403 
Charter Amendment: 

Mountain Parks, total .... 37,119 
Charter Amendment: 

Liquor Question, total .... 34,096 

City Election, February 14, 1913 

The actual vote over most serious matters was : 
Telephone Ordinance: 

For 25,784 

Against • • 3,315 

Total . 29,099 



58 POPULAR GOVERNMENT 

Holding Charter Convention to adopt Non-Parti- 
san Commission form of Government: 

For 7,632 

Against 15,647 

Total 28,279 

Initiated Measure to give Immediate Non-Parti- 
san Commission form of Government: 

For 15,841 

Against 11,001 

Total 26,842 

Non-Partisan System of Election: 

For 15,601 

Against ........ 11,012 

Total 26,613" 

Again, in the city of Cleveland, Ohio, the 
immensely important question whether they should 
approve a new charter was submitted and resulted 
as follows : 

Registered electors 97,000 

For charter 24,037 

Against charter 12,077 

Not voting 60,886 



INITIATIVE AND REFERENDUM 59 

The charter was thus approved by less than one 
fourth of electors. It was the result of four 
months' work of fifteen commissioners. 

Such instances might be cited in great number. 
But it is said by the proposers of this new 
system, "we propose to teach the people the prob- 
lems of government and to interest them in 
matters that they ought to understand. We 
believe that by continuing we shall ultimately 
succeed in securing the action of a large majority 
of the electorate." It is enough to say this has 
not been the result whenever the attempt to have 
people vote on complicated legislative measures 
has been tried. Their interest has decreased. 
They have been tired and have avoided voting. Is 
it not much easier to rouse them to their duty to 
vote only between long intervals and then for a 
few competent representatives? If education of 
the people is necessary to make the new system 
work, does it not seem the course of common sense 
to retain the old system in which the lesson to be 
learned is so much simpler and so much more 
easily taught? 

We Hve in an age of reform — I hope of real 
reform, but the sham reformers and the crank 
reformers, the men who have no practical sense 
with reference to what reform is, will seize upon 
an opportunity like this initiative to bring the 



60 POPULAR GOVERNMENT 

people to the polls so often, and to increase the 
questions to be submitted at the polls to such 
number as utterly to disgust the voting public, 
and ultimately to reduce the numbers of those 
who do vote on such issues to a point where a very 
small minority can carry them. Now is this wise? 
Is it not turning over our Government to the 
cranks? Is it not giving the decision whether 
nostrums shall go into operation to the very 
inventors of those nostrums? When the careful 
student of history shall read over the legislative 
measures proposed by the initiative for refer- 
endum in the various States and the steps taken 
under them, his amazed interest, on one hand, and 
his humor, on the other, will all be roused, as ours 
now is, by considering the wild propositions that 
were made and seriously entertained and for a 
time put into operation during the French Revo- 
lution. 

One of the features of present-day politics is 
the lively fear that those engaged in executing the 
laws and enacting them entertain of temporary 
popular condemnation and criticism. The man 
from whom the people really secure the best ser- 
vice is the man who acts on his own judgment as 
to what is best for his country and for the people, 
even though this be contrary to the temporary 
popular notion or passion. The men who are 



INITIATIVE AND REFERENDUM 61 

really the great men of any legislative body are 
those who, having views of their own, defend them 
and support them, even at the risk of rousing a 
popular clamor against themselves. 

Take an instance recently noted in the dis^ 
patches from Washington. A member of the 
House has justified making incomes of $4,000 a 
year exempt from the proposed national income 
tax on the ground that, if the line of immunity 
were reduced to incomes of $1,000 and less, it 
would create such an opposition to the tax that it 
would defeat the party responsible for passing it. 
If an income tax is a good thing, and ought to be 
imposed, then the line of immunity ought not to be 
determined by the question how many votes it 
would drive away from the controlling party, or 
by the justice and economic wisdom of the limita- 
tion. Personally, it seems to me that the lower 
the line of immunity the better, from the stand- 
point of public policy. In all the nations of 
Europe the immunity is below the line of $1,000 
incomes, and the advantage of this is that it makes 
as many as possible contribute something directly 
to the Government, and such a contribution rouses 
an interest on the part of the tax-payer in the 
expenditures of Government, and gives him a 
motive for being economical and for wishing to 
reduce governmental expenditures as much as 



62 POPULAR GOVERNMENT 

possible. But if the great majority of the voting 
population pay no taxes at all, and the taxes are 
paid by the comparatively few, then the great 
majority in supporting or voting appropriations 
of the Government are unaffected by the expendi- 
tures and have no sense of responsibility as to 
their amount. The reason given by the member 
of Congress, whom I have quoted, sufficiently illus- 
trates my point that Congressmen do not permit 
themselves to think independently on subjects 
entrusted to their judgment and action, but they 
keep their eyes constantly on the question of how 
the votes of the people may be affected by such 
legislation toward the authors of it. 

No one ought to minimize the danger there is 
of corrupt corporate control of legislatures and 
obstruction to popular will. These are serious 
evils to be provided against, I fully admit, but, on 
the other hand, I think that the slavish subordi- 
nation of the representative, against his better 
judgment, to temporary, popular passion is also 
a serious evil. The disposition of politicians to 
coddle the people, to flatter them into thinking 
that they can not make a mistake, and to fail to 
tell them the truth as to their own errors and 
tendencies to error, is a growing difficulty in the 
matter of successful popular government. The 
assumption that all the defects in our body politic 



INITIATIVE AND REFERENDUM 6S 

and social which have manifested themselves are 
due to the machinations of wicked men, and are not 
due in any degree to the fault of the people in 
discharging their political obligations, is a mis- 
representation of the truth, but flattering to the 
people. Ultimately the people learn the truth; 
ultimately they see through the hypocrisies of 
those who flatter them, and without hesitation they 
reverse their action, although it seems as if the 
entire population had been irrevocably committed 
to its wisdom. If some of our politicians pursued 
the course of telling the truth at all hazards to 
the people about themselves, and about those who 
wish to mislead them, they might not lose as many 
votes as they fear. 

To all these objections, which seem to me to 
constitute conclusive reasons against this pro- 
posed return to direct government, the answer is: 
"We do not intend to destroy representative 
government. We value it highly. We wish 
merely to better it and make it more responsive to 
the people's will." The eff^ect of the initiative and 
referendum upon the legislative branch of the 
Government, even if it be retained, is necessarily 
to minimize its power, to take away its courage 
and independence of action, to destroy its sense of 
responsibility and to hold it up as unworthy of 
confidence. Nothing would more certainly destroy 



64 POPULAR GOVERNMENT 

the character of a law-making body. No one with 
just pride and proper self-respect would aspire to 
a position in which the sole standard of action 
must be the question what the majority of the 
electorate, or rather a minority likely to vote, will 
do with measures the details of which there is 
neither time nor proper means to make the public 
understand. The necessary result of the com- 
pulsory referendum following the initiative is to 
nullify and defeat the very advantages of the 
representative system which made it an improve- 
ment upon direct government. 

The strongest objection to these instruments 
of direct government, however, is the effect of 
their constant use in eliminating all distinction 
between a constitution as fundamental law, and 
statutes enacted for the disposition of current 
matters. When exactly the same sanction, with- 
out any greater formalities or deliberation, is 
given to a statute as to a constitution, to an 
appropriation bill as to a bill of rights, so that 
the one may be repealed as easily as the other, the 
peculiar office of a constitution ceases to be. It 
minimizes the sacredness of those fundamental 
provisions securing the personal rights of the 
individual against the unjust aggression of the 
majority of the electorate. 

We are told by this new school of political 



INITIATIVE AND REFERENDUM 65 

thinkers that there are no inalienable rights of 
an individual which the people may not, in the 
interest of the people and the government at large 
modify, impair or abolish. The contention is that 
a man has no rights, independent of the wiU of 
the people with whom he lives, that he does not 
inherently possess personal liberty, the right to 
property, the right to freedom of religion, the 
right to free speech or that protection secured 
to him under the title of "due process of law," 
and that these can be taken from him by legis- 
lative or executive action, if sanctioned by a 
popular vote, with the same ease and dispatch 
that the repeal of any ordinary law could be 
effected. Now this is a very different doctrine 
from that which our forefathers laid down in the 
Declaration of Independence and exemplified in 
the provisions of our Constitution and the amend- 
ments called "the BiU of Rights" which imme- 
diately followed its adoption. 

I don't know that a discussion would be pro- 
ductive of much good as to whether such rights 
are in the moral sense inalienable. I don't care 
whether they are caUed inherent rights, or 
whether it is conceded, as it must be conceded, 
that experience has shown that in the use of popu- 
lar government for the promotion of the happi- 
ness of the individual and of society, these things 



66 POPULAR GOVERNMENT 

which are called rights must be accorded to the 
individual, if government is to attain the great 
end of government. In Loan Association vs. 
Topeka, 1874, 20 Wall, 655, Mr. Justice MiUer, 
speaking for the Supreme Court, used this lan- 
guage: 

"A government which recognizes no such 
rights, which held the hves, the hberty and the 
property of its citizens subject at all times to 
the absolute disposition and unhmited control of 
even the most democratic depository of power, is 
after all, but a despotism. It is true it is a despot- 
ism of the many, of the majority, if you choose 
to call it so, but it is none the less a despotism. 
It may well be doubted if a man is to hold all that 
he is accustomed to call his own, all in which he 
has placed his happiness, and the security of which 
is essential to that happiness, under the unlimited 
dominion of others, whether it is not wiser that 
this power should be exercised by one man than 
by many." 

The great heritage and glory of the American 
people has been that their EngHsh ancestors first 
invented representative government and first 
established these individual rights as against their 
kings. When, as Americans, they came to estab- 
lish a government of their own in this country, 



INITIATIVE AND REFERENDUM 67 

the3^ developed even more perfectly the representa- 
tive system and recognized the possibility and 
probabiHty of error and mistake on the part of 
themselves in their temporary action, and they 
therefore imposed upon themselves, and upon their 
agencies represented in their government, certain 
limitations in protection of the individual and of 
the minority. They saw a possible tyranny in a 
majority in popular government quite as danger- 
ous as the despotism of kings and they prepared a 
written constitution intended to preserve indi- 
vidual rights against its exercise. It is this funda- 
mental law of popular self-restraint that has 
aroused the admiration of the world, has com- 
manded the praise of those historians who have 
studied governments and has led them to the con- 
clusion that it was this that has given such sta- 
bility and success to the American nation. Lord 
Acton, one of the greatest historical authorities of 
any age, in speaking of the Constitution of the 
United States, said : 

"It established a pure democracy, but it was 
democracy in its highest perfection, armed and 
vigilant, less against aristocracy and monarchy 
than against its own weakness and excess. Whilst 
England was admired for the safeguards with 
which, in the course of many centuries, it had 



68 POPULAR GOVERNMENT 

fortified liberty against the power of the crown, 
America appeared still more worthy of admiration 
for the safeguards which, in the deliberations of a 
single memorable year, it had set up against the 
power of its own sovereign people. It resembled 
no other known democracy for it respected free- 
dom, authority and law. It resembled no other 
constitution, for it was contained in half a dozen 
intelligible articles. Ancient Europe opened its 
mind to two new ideas — that revolution with very 
little provocation may be just and that democracy 
in very large dimensions may be safe." 

Now it is proposed to dispense with all the limi- 
tations upon legislation contained in the Consti- 
tution, and it is proposed to leave to the initiative 
and the referendum, without regard to the char- 
acter of the law, or what it affects, and without 
limitation as to individual rights, the absolute 
power to legislate according to the will of the 
people. This was the principle that prevailed in 
the pure democracies of ancient times, and we 
know with what disastrous results. 

The same great historical authority. Lord 
Acton, describes it as follows : 

"The philosophy that was then in the ascendant 
taught them that there is no law superior to that 
of the State — ^the lawgiver is above the law. 



INITIATIVE AND REFERENDUM 69 

"It followed that the sovereign people had a 
right to do whatever was within its power, and was 
bound by no rule of right or wrong but its own 
judgment of expediency. On a memorable occa- 
sion the assembled Athenians declared it monstrous 
that they should be prevented from doing what- 
ever they chose. No force that existed could 
restrain them; and they resolved that no duty 
should restrain them, and that they would be 
bound by no laws that were not of their own mak- 
ing. In this way the emancipated people of 
Athens became a tyrant; and their Government, 
the pioneer of European freedom, stands con- 
demned with a terrible unanimity by all the wisest 
of the ancients. They ruined their city by 
attempting to conduct war by debate in the 
market place. Like the French Republic, they put 
their unsuccessful commanders to death. They 
treated their dependencies with such injustice that 
they lost their maritime empire. They plundered 
the rich until the rich conspired with the public 
enemy and they crowned their guilt by the 
martyrdom of Socrates. 

"When the absolute sway of numbers had 
endured for near a quarter of a century, nothing 
but bare existence was left for the State to lose; 
and the Athenians, wearied and despondent, con- 
fessed the true cause of their ruin. . . . The 



70 POPULAR GOVERNMENT 

repentance of the Athenians came too late to save 
the Republic. But the lesson of their experience 
endures for all times, for it teaches that govern- 
ment by the whole people, being the government of 
the most numerous and most powerful class, is an 
evil of the same nature as unmixed monarchy, and 
requires, for nearly the same reasons, institutions 
that shall protect it against itself, and shall 
uphold the permanent reign of law against arbi- 
trary revolutions of opinion." 

The result in the Roman Republic for similar 
reasons was the same. 

The question which is really at issue in the 
adoption of the initiative and the referendum is 
whether we shall abohsh constitutions, shall aboHsh 
the standard of individual rights and shall justify 
the action of the majority of an electorate which 
is a minority of all the people as necessarily the 
only guide to right and justice. When it becomes 
apparent, as it undoubtedly will later, what the 
real meaning of this issue is, as I have stated it, 
I doubt not that the American people will end this 
movement, formidable and popular as it now 
seems, and reverse their present tendency. It is 
said that this can not be ; that the people have felt 
the pleasure of the exercise of the power which 
they have under the system and that they never 



INITIATIVE AND REFERENDUM 71 

will willingly give it up again, lest they may be 
obstructed and hampered by the intrigues and 
corruptions of politicians. It is possible that the 
people may never formally repeal provisions for 
referendum, but my judgment is that the move- 
ment will come to an end by the non-use of the 
referendum, as the people shall see the absurdities 
into which it is likely to lead them. That the 
initiative as an instrumentality in the hands of 
cranks to impose unnecessary political duties upon 
the whole body of the electorate will become 
unpopular, it is easy to foretell. When the ini- 
tiative is abolished as an institution, and the 
referendum left to the option of the legislature, 
with the experience that the people are likely to 
go through with before this result is reached, we 
can be confident that the use of the referendum 
will be so infrequent as not to endanger the repre- 
sentative system, or to change materially its useful 
character. 



IV 

The Initiative, the Referendum, the Recall 
(Continued) 

I have pointed out in the last chapter a number 
of objections to the new system of direct govern- 
ment by a majority of those voting, who are 
usually a minority of the electorate, but I did not 
exhaust the arguments which can be urged against 
the proposed radical change in our form of 
government. 

I must not fail to notice an argument against 
the introduction of the system into the state 
governments, which has been made by some very 
able opponents of this so-called reform, in which, 
however, I can not concur. Senator Bailey, on 
the floor of the Senate, contended that the pro- 
posed change would be a violation of the guaranty 
contained in Article 4, Section 4, of the Consti- 
tution, the language of which is : 

"The United States shall guarantee to every 
state in this Union a republican form of govern- 
ment and shall protect each of them against inva- 
sion, and on apphcation of the legislature, or of 



INITIATIVE, REFERENDUM, RECALL 73 

the executive when the legislature can not be con- 
vened, against domestic violence." 

The insistence of Senator Bailey was, and of 
others who have supported him in that view, that 
the use of the expression "republican" form of 
government indicated the intention upon the part 
of the f ramers of the Constitution to secure in the 
States, by guaranty of the general Government, a 
representative form of popular government. He 
pointed out that the debates of the Constitutional 
Convention, so far as we can get at them, and the 
language of The Federalist, a contemporaneous 
comment on the Constitution before it was adopted 
by the people, showed conclusively that all the 
framers of the Constitution understood clearly the 
difference between a representative government 
and one in which the people exercised the power 
of government directly ; that they had constantly 
in mind the difference between a republic under a 
system of representative government and a pure 
democracy, and that they were anxious to avoid 
the dangers which in their judgment would flow 
from a pure democracy. 

A number of times Madison gave his definition 
of republicanism, and he described it as a popular 
representative government. In Chapter 10 of 
The Federalist, which Madison wrote, he pointed 



74 POPULAR GOVERNMENT 

out the dangers of faction in a popular govern- 
ment, and then he said: 

"If a faction consists of less than a majority, 
reHef is supplied by the repubhcan principle, 
which enables the majority to defeat its sinister 
views, by regular vote. It may clog the adminis- 
tration, it may convulse society; but it will be 
unable to execute and mask its violence under the 
forms of the constitution. When a majority is 
included in a faction, the form of popular govern- 
ment, on the other hand, enables it to sacrifice to 
its ruling passion or interest, both the pubHc 
good and the rights of other citizens. To secure 
the public good, and private rights, against the 
danger of such a faction, and at the same time to 
preserve the spirit and the form of popular 
government, is then the great object to which our 
inquiries are directed. Let me add, that it is the 
great desideratum, by which alone this form of 
government can be rescued from the opprobrium 
under which it has so long laboured, and be recom- 
mended to the esteem and adoption of mankind. 

"By what means is this object attainable? 
Evidently by one of two only. Either the exist- 
ence of the same passion or interest in a majority 
at the same time must be prevented; or the 
majority having such co-existent passion or 



INITIATIVE, REFERENDUM, RECALL 75 

interest, must be rendered, by their number and 
local situation, unable to concert and carry into 
effect schemes of oppression. If the impulse and 
the opportunity be suffered to coincide, we well 
know, that neither moral nor religious motives can 
be relied on as an adequate control. They are not 
found to be such on the injustice and violence of 
individuals, and lose their efficacy in proportion 
to the number combined together; that is, in pro- 
portion as their efficacy becomes needful." 

What does Madison mean by faction here? It 
is clear that he means that spirit either of a 
majority or minority of the electorate when it 
allows its action to be controlled by passion, selfish 
desire for its own benefit even through unjust 
treatment of others, and by absence of responsi- 
bility in the use of political power. 

With this suggestion, let us follow Mr. Madi- 
son further in his discussion. He continues : 

"From this view of the subject, it may be con- 
cluded, that a pure democracy, by which I mean 
a society consisting of a small number of citizens, 
who assemble and administer the government in 
person, can admit of no cure from the mischiefs 
of faction. A common passion or interest will, in 
almost every case, be felt by a majority of the 
whole; a communication and concert results from 



76 POPULAR GOVERNMENT 

the form of government itself; and there is 
nothing to check the inducements to sacrifice the 
weaker party, or an obnoxious individual. Hence 
it is, that such democracies have ever been spec- 
tacles of turbulence and contention; have ever 
been found incompatible with personal security, 
or the rights of property; and have, in general, 
been as short in their lives, as they have been 
violent in their deaths. Theoretic politicians, who 
have patronized this species of government, have 
erroneously supposed, that by reducing mankind 
to a perfect equality in their political rights, they 
would, at the same time, be perfectly equalized and 
assimilated in their possessions, their opinions and 
their passions. 

"A republic, by which I mean a government in 
which the scheme of representation takes place, 
opens a different prospect, and promises the cure 
for which we are seeking. Let us examine the 
points in which it varies from pure democracy, and 
we shall comprehend both the nature of the cure 
and the efficacy which it must derive from the 
union. 

"The two great points of difference between a 
democracy and a republic, are, first, the delega- 
tion of the government, in the latter, to a small 
number of citizens elected by the rest; secondly, 
the greater number of citizens, and greater sphere 



INITIATIVE, REFERENDUM, RECALL 77 

of country, over which the latter may be 
extended." 

I have read this passage from Madison not only 
to show that he, as one of the leading spirits of 
the Constitutional Convention, and, therefore, 
probably all the others, were advised of the dis- 
tinction between a republic and a pure democracy, 
but also to enforce the arguments of my last 
lecture as to the danger of direct government of 
a maj ority or a minority of the electorate, without 
any restraint as to the rights of the rest of the 
people and of individuals. But its real relevancy 
at this point is with reference to its bearing upon 
the meaning of the word "republican" used in the 
Constitution to support the argument of Senator 
Bailey and others, to which I have already 
referred. To Senator Bailey's argument that 
provision for legislation by referendum in a State 
government destroys its republican form, there 
are, it seems to me, two conclusive answers. One 
is that the use of the word "republican" at this 
point in the Constitution was not by way of con- 
trast to a pure democracy as Madison used it in 
the passage quoted, or by way of emphasis upon 
the distinction between the two, but that it was 
used to describe generally the character of the 
governments which the embryo States had, at the 



78 POPULAR GOVERNMENT 

time the Constitution was being formed, and that 
the contrast intended to be emphasized by this lan- 
guage was the contrast between a repubHcan form 
of government and a monarchical form of govern- 
ment, a government in which the people had con- 
trol, and in which they did not have control ; and 
this clause was a guaranty by the National Gov- 
ernment that every State should have a form of 
government which rested upon the will of the peo- 
ple. The second answer to the argument is that 
the question of what is a republican form of gov- 
ernment in this clause is a question which was 
evidently committed to the discretion of Congress 
ultimately to decide, because under the form 
of the article the guaranty is by the general 
Government, and that guaranty the general 
Government must necessarily enforce, if it is to 
be enforced. The method to be pursued by the 
general Government in the enforcement of such a 
guaranty is by legislative and executive action, 
and this necessarily relegates to Congress and the 
Executive the power, poHtical in its nature, to 
determine when a State government is republican 
within the meaning of this article. To such a deci- 
sion the judicial branch of the Government must 
necessarily bow and can exercise no jurisdiction in 
enforcement of the guaranty. One of the most 
frequent questions which Congress has been called 



INITIATIVE, REFERENDUM, RECALL 79 

upon to decide is whether the constitution of an 
embryo state (that is a territory asking Congress 
for admission into the Union and tendering a con- 
stitution) secures to the State a republican form 
of government. Congress has acted a number of 
times in respect to this matter so as to leave no 
doubt as to the decision by this competent author- 
ity that a republican form of government guaran- 
teed to each State by the Constitution is not 
Hmited to one which is strictly representative and 
may extend to one in which, by provisions for the 
initiative and referendum, there is an assimilation 
to the pure democracy and direct government. 

In the case of Pacific States . . . Co. vs. the 
State of Oregon, 228, U. S. 118, the Supreme 
Court was called upon to consider the defense 
made by a defendant telephone company against 
the collection of a tax, that the tax was invahd 
because authority was found for it in a statute 
enacted into law directly by the people under the 
procedure by initiative and referendum, and that 
the statute by virtue of Section 4, Article 4, was 
the act of a State not having a republican form 
of government and was void. The Court, speak- 
ing by Chief Justice White, held that the question 
whether Oregon had a republican form of govern- 
ment was political, and was for the judgment of 
Congress, and that until Congress acted upon any 



80 POPULAR GOVERNMENT 

change in the government of Oregon, and declared 
it to be a violation of the Constitution, the Court 
would accept its status as determined by Congress 
when it admitted Oregon into the Union. 

In passing, it may be useful to call particular 
attention to the action of the Supreme Court in 
declining to decide this purely poKtical question 
and in remitting it to the poHtical branch of 
Government as represented by the legislature. 
The Supreme Court has been attacked vigorously 
in this recent and current agitation as an arbi- 
trary repository of political power, legislative in 
its character and prejudiced in its exercise, this 
for the purpose of laying the foundation for the 
uboHtion of the constitutional restraints and the 
remission to the result of a popular referendum 
the question of the validity of a legislative act 
rather than to the decision of a court. Not only 
in this case but in a great many other cases aris- 
ing under the Constitution, the Supreme Court 
has refused to assume power to differ with the 
poHtical branches of the government in the deci- 
sion of political questions. 

Recall 

In coming to the question of recall, we are 
brought to the consideration of something said 



INITIATIVE, REFERENDUM, RECALL 81 

to be new in the instrumentalities of government, 
although the Athenians certainly exercised it in 
effect. The initiative and the referendum were 
inventions of the Swiss, and had been put into 
operation for a number of years before their 
adoption here, but the Swiss never had the recall. 
The recall is part and parcel of the plan of direct 
government by the people acting at once, and, as 
the Latin phrase has it, dum fervet opus, i.e., 
"while the issue is raging" (to give it a free 
translation). It is a part of what has not infre- 
quently been called the "hair trigger" form of 
government, by which, immediately upon the pre- 
sentation of an issue, it shall be passed upon by 
the electorate. The recall is an institution under 
which, by the petition of a certain percentage of 
registered voters, the question whether any 
elected officer shall continue in office during the 
term for which he was elected shall be submitted 
to the electors, with the feature added that any 
other aspirant to the office, having complied with 
certain formal preliminaries, may become a candi- 
date against him in the same election in which his 
qualifications for office are to be reconsidered by 
the people. The opportunity is given in the peti- 
tion for a statement of the reasons why the officer 
against whom the petition is filed ought to be 
recalled, and generally in some form or other an 



82 POPULAR GOVERNMENT 

opportunity is given to the incumbent to state a 
short answer to the charges made. 

It seems to me that the arguments against this 
method of changing the popular agents are as 
strong as those against the initiative and the 
referendum. The useful part of the plan can all 
be accomplished by a provision that if the officer 
has neglected his duty, or is guilty of malfeasance, 
he may be removed after a hearing by a court or 
by the Chief Executive. This could be made as 
expeditious as a fair hearing would permit and 
need not drag through all the courts with the 
officer still holding his office, but the action of the 
first tribunal, whether judicial or executive, could 
oust him, and an appeal, if taken, need not sus- 
pend the effect of the ouster until a final reversal 
of the first decision. 

The objection to the recall is not at all the 
injustice to the officer in taking away from him 
that which the people had given him. We have 
lost the idea in tliis country that an office is the 
property of the officer, and such a provision as 
recall does not, therefore, in any way interfere 
with a vested right. His comfort or enjoyment 
does not figure in the matter at all. The objec- 
tion to the recall is its injury to efficient govern- 
ment and the possibility that an honest and effect- 
ive official may be prevented from doing his duty 



INITIATIVE, REFERENDUM, RECALL 83 

by the use of such an instniment in the hands of 
malignant enemies, or aspiring rivals who seize 
the opportunity of a momentary unpopularity to 
deprive the public of a useful pubHc servant. It 
takes away the probability of independence and 
courage of official action in the servants of the 
people. It tends to produce in every pubHc 
official a nervous condition of irresolution as to 
whether he should do what he thinks he ought to 
do in the interest of the pubHc, or should withhold 
from doing anything, or should do as little as 
possible, in order to avoid any discussion at all. 

What do we have government for? It is not 
merely for the purpose of elections. It is not 
merely for the purpose of inviting the people con- 
stantly to express their opinion on issues just as 
an amusement. We have government for the 
purpose of accompHshing something, of doing 
something for the benefit of the people, of achiev- 
ing the greatest good to the greatest number, and 
preserving to the individual his happiness and 
progress. Now I submit it is not to contribute 
to that end to have mere puppets in office who can 
not enter upon proper public policies and carry 
them out, because they fear that their purpose 
will be misunderstood before their patriotic and 
public objects are accomplished. 

If we have the recall in the case of local officers, 



84 POPULAR GOVERNMENT 

there is not any logical reason why we should not 
have the recall in the case of all officers, and there- 
fore that whenever proper prehminaries are estab- 
Hshed, we should have the recall of Presidents. 
Look back, my friends, through the history of the 
United States and recount the number of instances 
of men who filled important offices and whose 
greatness is conceded to-day, and tell me one who 
was not subject of the severest censure for what he 
had done, whose motives were not questioned, 
whose character was not attacked, and who, if 
subjected to a recall at certain times in his official 
career when criticism had impaired his popu- 
larity, would not have been sent into private life 
with only a part of his term completed. Wash- 
ington is one who would have been recalled, Madi- 
son another, Lincoln another and Cleveland 
another. These were the highest types of patriots 
and statesmen, who adhered to a conscientious 
sense of duty to the public. They are men for 
whom to-day the verdict of history is, "Well done, 
thou good and faithful servant" and this, too, in 
respect of the very matters that at the time had 
subjected them to the doubt and suspicion and 
antagonism of a temporary majority of the 
people. Indeed the recall is nothing but the logi- 
cal outcome of the proposition embodied in the 
referendum and the initiative, to wit, that govern- 



INITIATIVE, REFERENDUM, RECALL 85 

ment must follow the course of popular passion 
and momentary expression of the people without 
deliberation and without opportunity for fuU 
information. I am now referring to the recall of 
executive officers and legislative representatives, 
and what I have said is applicable to them. I am 
not now dealing with the judicial officer and the 
recall of the judge. That is associated with 
another proposition known as the recall of judi- 
cial decisions, and I shall later consider those two 
propositions together under another clause of the 
preamble. 

The adoption of the initiative, referendum and 
recall, and the change of the character of our 
Government which they will involve, is but flying 
in the face of the indisputable verdict of history, 
and the plainest inference that the logic of cir- 
cumstances can enforce. These "hair trigger" 
popular verdicts are said to be progressive, and to 
be the means of a growth toward better things. 
They are advocated as necessary steps in advanc- 
ing civilization. The facts contradict altogether 
such a view. It is a case of atavism. It is adopt- 
ing a theory of government that was rejected 
thousands of years ago because of its utter failure 
to survive the inherent difficulties presented in its 
practical operation. 

I would not minimize in the slightest degree the 



86 POPULAR GOVERNMENT 

advantage that will doubtless arise in our Govern- 
ment from the stimulated interest of the people 
in stamping out certain evils of our pohtical sys- 
tem to which I have referred. Those evils were 
largely possible because of the lack of that popu- 
lar attention which is now being more or less 
roused to the consideration of our Government, 
our social condition and those inequalities of 
opportunity and condition which it is wise for our 
Government to attempt to modify and remedy. 
But the warning in which all practical and patri- 
otic men must join is that these so-called novel 
methods, approval of which is now made a test of 
the real progressive spirit, mean only a reversion 
to a type that has been proven to be a failure and 
will necessarily lead to a defeat of all the good 
purposes and real benefits of popular government. 
Unrestrained tyranny of the majority will lead to 
anarchy, and anarchy will lead the people to 
embrace and support the absolute rule of one 
rather than the turbulent and unreasonable whim 
of a factional majority. 

Of course, I understand the penalty that one has 
to undergo in taking this position, of being 
charged with prejudice in favor of special inter- 
ests, and against popular government, and with 
failing to recognize the great change which has 
come over the people. The leaders of the move- 



INITIATIVE, REFERENDUM, RECALL 87 

ment dwell upon the regeneration of the political 
character of the people, and their really religious 
enthusiasm and the growth of self-abnegation 
among them. Therefore, it is said that we must 
not look to the past as an evidence or a proof of 
what will happen by the introduction of these old 
methods. 

I had the pleasure of listening to a sermon in 
New York preceding the last election, in which it 
was pointed out that, except in respect of the 
slavery issue, politics in America had since the 
foundation of the Government been commercial, 
sordid and concerned with the material side of 
life, but that from this time on the issues were not 
to be merely commercial and economical, but were 
to present the higher aspirations on the one side, 
and a retrogression on the other, and that all that 
was necessary was for the people to choose; that 
we had escaped from the dominion of the slavish 
accumulators of wealth, and that we were now 
moving on to a higher level and to the cultivation 
of the pure brotherhood of man. This view was 
not very complimentary to the great men that 
established this government, or the patriots and 
statesmen who have figured since in American 
history, and it struck me as unduly optimistic. 
No one should hold in contempt the aspiration for 
better things nor employ ridicule to confute argu- 



88 POPULAR GOVERNMENT 

ment based upon it, but the plain facts can not be 
destroyed by mere eloquence. 

The character of the people is made up by the 
character of the individuals that compose it. The 
truth is that the conscience of the crowd is never 
as sensitive, and never represents as high ideals, 
as the conscience of the individual, and the sound- 
ness of the view that the people are now ready for 
a form of government which, in the past, they 
have not been able to exercise with any utiHty to 
themselves, must rest upon our knowledge of the 
individual. I would not deny at all that there are 
enthusiasts who conscientiously feel the spur of 
brotherly love and of anxiety to bring about a 
condition in which that sentiment shall be embodied 
in our statutes and in our governmental policies, 
and in all relations in Hfe between individuals, and 
that there are those who are willing to make real 
sacrifices to bring about such a state, even to the 
giving up of the advantages of comfort and wealth 
and position that they now enjoy in society. But 
has sin left us? Has the principle of enlightened 
or other kind of selfishness ceased to operate on the 
individual? Are we not all subject to the weak- 
nesses of human nature that we have known for 
six thousand years ? And do those weaknesses not 
manifest themselves in elections as well as in other 
phases of individual duty? Is it the wise part of 



INITIATIVE, REFERENDUM, RECALL 89 

statesmanship to ignore these truths and the char- 
acter of the individual and of the people as we 
know them to-day, and proceed to adopt a form 
of government on the theory that they have 
entirely changed, and that each man bears to the 
other a feeling of altruism and of brotherly love 
that will make him ignore his own condition and 
look after his brother's only ? We know this is not 
so. Though we accept the proposition that the 
people have grown more sensitive than they were 
when they permitted corruption and corrupt con- 
trol of state legislatures and other instrumen- 
talities of government by their inertia and their 
failure to act, must we not admit that in the States 
where the new direct system has been introduced, 
we find a majority of the voters neglecting their 
public duties so that measures are being adopted 
by a comparatively small minority, and not by the 
majority? 

This movement back of the referendum, initia- 
tive and recall does not find its only promptings in 
a desire to stamp out corruption. There is another 
basis for the movement to-day which gives 
strength to the proposal to put unrestrained and 
immediate control in the hands of a majority or 
minority of the electorate. It is in the idea that 
the unrestrained rule of the majority of the 
electors voting will prevent the right of property 



90 POPULAR GOVERNMENT 

from proving an obstacle to achieving equality in 
condition so that the rich may be made poorer and 
the poor richer. In other words, a spur, con- 
scious or unconscious, to this movement is socialis- 
tic. It may not be recognized, even by those who 
are acting under its influence, but it is there, and 
ultimately it will manifest itself so plainly that 
no one can be blinded as to its real meaning and 
purpose. 

I can not at this time consider properly the 
wisdom and soundness of the doctrine that lies at 
the basis of socialism, or put a true and full esti- 
mate upon the value of the preservation of the 
right of property in our political, governmental 
and economic systems. Nor do I impeach the 
good faith or intentions of socialists. It is suffi- 
cient for me now to say that next to the right of 
liberty, the right of property is the most impor- 
tant individual right guaranteed by the Constitu- 
tion and the one which, united with that of 
personal Hberty, has contributed more to the 
growth of civilization than any other institution 
established by the human race. If it is to be elimi- 
nated from the rights secured to the individual, 
then we shall see disappear from our community 
the mainspring of action that has led men to labor, 
to save, to invent, to devise plans for making two 
blades of grass grow where one grew before, to 



INITIATIVE, REFERENDUM, RECALL 91 

increase the production of all human comforts and 
to reduce their cost; we shall see a halt in thrift, 
providence, industry, mental and physical activity 
and energy because they will no longer command 
the rewards that have heretofore stimulated them, 
and society will sink to a dead level of those who 
will seek to get along with the least labor, least 
effort and least self-sacrifice. Socialism proposes 
no adequate substitute for the motive of enlight- 
ened selfishness that to-day is at the basis of all 
human labor and effort, enterprise and new 
activity. 

There is reason to believe that the tendency of 
much of what has been termed "unrest" in society 
has been fed and stimulated by the jealousy of 
those who with envious eye are now looking upon 
the rewards of thrift and saving and enterprise 
enjoyed by others. Then, too, these proposed 
radical changes in our political and social struc- 
ture have found ready support from those sincere 
lovers of their kind whose judgment has been led 
astray by a constant contemplation of the suffer- 
ing and misfortune in the world, and whose sense 
of the due proportion of things has thus been 
affected so that they can not see the real pro- 
gress that has been made in the comfort and 
enjoyment and opportunity of the average indi- 
vidual to-day over that which the average indi- 



92 POPULAR GOVERNMENT 

vidual enjoyed fifty, one hundred or two hundred 
years ago. 

Do we find in the propaganda of this modern 
school of thinkers who are engaged in organizing 
the new millennium, any appeal for industry, 
thrift and the discharge of duty by aU the people? 
Is not the picture constantly held out to the people 
that they are the victims of a conspiracy against 
them by those who appear to be the more fortu- 
nate? Is there not in every line of the addresses 
and the speeches and the platforms that are issued 
to arouse the people, the assumption that they 
have discharged their duty in every regard? 
Are not those who achieve under modern condi- 
tions the greater comfort by hard work and pru- 
dential virtues held up as in some way to blame for 
the fact that those who are not so thrifty, and who 
have not labored with the same assiduity and with 
the same self-sacrifice do not have the same 
comforts ? 

I would not minimize the number of the unfor- 
tunate who in the struggle for existence have 
fallen behind through the hardness of conditions 
rather than through their lack of industry and 
thrift. Wherever the present law by reason of its 
ancient derivation fails to square with the just 
requirements of modem conditions, I would amend 
it, and one good thing that this present movement 



INITIATIVE, REFERENDUM, RECALL 93 

is accomplishing is the modification of the harder 
and narrower provisions of the common law so as 
to put the employees of little power and means on 
a level with their employers in adjusting and 
agreeing upon their mutual obligations. Indeed, 
no objection exists to the proposal to introduce 
what is called "coUectivist" legislation, if sensibly 
and practically conceived, in which the rights of 
classes against each other may be recognized, and 
the classes placed on such an equality as to 
opportunity as the law can properly effect. But 
it is a real injury to society to emphasize con- 
stantly the necessity for ameliorating the condi- 
tions of the less fortunate and the people of little 
means, without at the same time dwelling upon 
their duties as citizens, their obligation to render 
a full day's work for a full day's wages, their 
duty to sympathize with the enforcement of law 
and to render justice even to the more fortunate 
members of the community. Instead of this, 
appeals are really being made to the majority to 
use the power that their being a majority gives 
them to compel equality, not only of opportunity 
but of condition and of property, and, by silence 
on the subject, to ignore all difference in point of 
merit between thrift and industry on the one hand, 
and shiftlessness and laziness on the other. 

Let the movement in favor of purer and better 



94 POPULAR GOVERNMENT 

government go on. Let it disclose itself in the 
effective attention to the election of our representa- 
tives in executive and legislative offices, and to 
the holding of them to strict responsibility. But 
let us not, with a confession that we, the people, are 
incapable of selecting honest representatives, 
assume the still more difficult office and duty of 
directly discharging the delicate functions of 
government by the hasty action of a necessarily 
uninformed majority of the electorate, or, what is 
more likely, by a minority of an electorate, a 
majority of which declines to take part in the 
government through disgust at the impracticable 
and unwise burdens that are sought to be thrown 
upon them. 

I have no doubt that this movement toward 
direct government, or, as it is called, toward pure 
democracy, with a view of giving absolute power 
to a majority of the voting class, will continue for 
some time to come. I am not blind at all to the 
strength of the movement for the initiative, 
referendum and recall. I am quite aware that I 
am swimming against the stream but this does not 
discourage me or make my conviction less strong. 
The impatience at constitutional restraints will 
grow with the longing for absolute power by the 
voting minority. But I am very hopeful that 
when the American people, after many humiliat- 



INITIATIVE, REFERENDUM, RECALL 95 

ing experiences and difficulties of their own mak- 
ing, shall see that the ultimate issue is socialism 
and an unlimited control of the majority of the 
electorate on the one hand, or our present govern- 
ment on the other, they will make the wise choice 
and will give up this new solution of the problems 
of society. They wiU then return to an apprecia- 
tion of the wisdom of our ancestors in the framing 
of a government of the people, for the people, by 
the people, in which the checks and balances 
secure deliberation and wisdom in ultimate popu- 
lar action, and protect the indi^ddual in the 
enjoyment of those rights which have enabled him 
and his fellows to carry society and civilization 
to the high point which they have reached in the 
history of human kind. 

As Mr. Lincoln said in his first inaugural : 

"A majority held in restraint by constitutional 
checks and limitations and always changing easily 
with deliberate changes of popular opinion and 
sentiment is the only true sovereign of the people. 
Whoever rejects it, does of necessity fly to 
anarchy or despotism." 



V 

The Direct Primary 

In the discussion of the expression, "We, the 
people," set forth in the preamble of the Consti- 
tution, my remarks have taken the wide range of 
a consideration of the electorate, and the methods 
and procedure adopted for securing an expression 
of the will of the people, and the proper Hmita- 
tions and restraints in such procedure for the 
purpose of securing dehberation and the clear 
exercise of popular judgment after full informa- 
tion. 

There is one other proposed reform that has 
been associated with the new methods of initia- 
tive, referendum and recall, though not neces- 
sarily involving them or involved in them. I 
mean the direct primary. That is a method of 
selecting the party candidates to be voted for in 
the election by a preliminary election of the mem- 
bers of the party. It is also usual and necessary 
to have a declaration of party principles so that 
the whole electorate may know what may be 
expected if the party succeeds in electing its can- 
didates and controls the legislature and the execu- 
tive. The direct primary itself can not furnish 



THE DIRECT PRIMARY 97 

this, and it is usually accompanied by some plan 
for securing such a declaration either from a 
party committee or a conference of candidates. 
The same evils which have prompted a resort to 
such radical methods as the initiative, the refer- 
endum and the recall, have also stimulated a wish 
to change the old methods of party government, 
of the selection of party candidates, and the 
declaration of party principles. 

In many States until a few years ago the con- 
trolling element in a party was practically self- 
perpetuating. The quaHfications of those whose 
votes or preferences were allowed to control the 
selection of the local committees and managers of 
the party, were so hmited that it was an easy 
matter for the leaders of the party to continue 
their power. They became properly known as 
the bosses of a machine. The machine strength- 
ened itself whenever the party was successful by 
distributing the patronage thus secured to create 
an organization of office-holders, or expectant 
office-holders, which was well-nigh invincible in 
the party councils and in determining party 
policy. 

Of course, the managers of great corporations 
that entered into politics for the purpose of pre- 
venting raids upon them, or for the purpose of 
securing undue privilege from the public, found 



98 POPULAR GOVERNMENT 

such machines and organizations ready tools for 
their hands to attain their purposes, and with the 
corruption fund which they were able to take from 
their profits, they supplemented the use of patron- 
age to lubricate the machine and make it operate 
with certain efficiency for the achievement of their 
ends. When the people were aroused to the sense 
of their danger from corrupt corporate control 
in the government, they properly turned to the 
boss system and the political machine as the 
instrument which enabled the powers of evil and 
of corruption to control parties, and through 
parties to control governments. They, therefore, 
directed their energies toward legislation which 
would take away the means of support upon which 
bosses and macliines had thrived. They found 
that the local political conventions and the cau- 
cuses of a limited membership which did not by 
any means admit or include the whole electorate 
of the party, selected the delegates to the local 
municipal, county and district conventions in 
which were nominated the municipal officers and 
the representatives to the State legislature and 
the members of Congress. In the same conven- 
tions were elected the delegates to the State con- 
ventions, which in turn selected the Governor and 
the other officers of state. Each caucus and each 
convention gave opportunity for manipulation by 



THE DIRECT PRIMARY 99 

the machine, so that the real rank and file of the 
party except the comparatively few "insiders" 
had little voice in the prehminary selecting of 
candidates and declaring of party principles. 
The only modification of this absolute power which 
the machine maintained was through the vote of 
the people at the election upon the result of the 
machine's work. The healthy fear of a defeat at 
the polls frequently led to the nomination for 
those offices, which did not give the incumbents 
great political power, of good candidates in order 
to attract the support of the party and the inde- 
pendent voter. For offices of patronage and 
political power the agents of the machine were 
generally nominated. 

I may stop a little to refer to this influence 
which we call the force of pubhc opinion. It is 
the saving grace in the defects of popular govern- 
ment. It grows out of publicity and a free press. 
It is what has made government in communi- 
ties possible and even tolerable under conditions 
that when stated seem necessarily to involve the 
most revolting and demoralizing corruption and 
tyrannical boss rule. It is what has enabled the 
great municipal community of New York City, 
the greatest city in this country and one of the 
greatest in the world, to live under such a control 
as that of Tammany and still have a useful 



100 POPULAR GOVERNMENT 

government, effective in many ways, though with 
many faults. This pubHc opinion is made up 
not by the views of the electorate alone, but by 
those of the whole people, including women, 
minors and residents ineKgible to vote, reflected 
in the press and reaching those in power in a 
thousand diff'erent ways. It exists, of course, 
to some extent in every form of government, 
however tyrannical, but it has its full flower 
among an intelligent, active and enterprising 
people who support a free, courageous, alert and 
discriminating press, the individual members of 
which present diff^erent aspects of the facts and 
of the issues, but which united together present in 
composite form an evidence of the public will that 
places a most healthy restraint upon the otherwise 
irresponsible boss or machine manager. The dis- 
tinction between a people capable of self-govern- 
ment and one that should be still in leading strings 
is shown more in the diff^erence in the intelligence 
and efi^ective power of public opinion of the two 
peoples than in any other way. I remember an 
incident in the Phihppine Islands when I was 
Governor that made me dwell upon such a differ- 
ence. I was waited on by a committee of respect- 
able Filipino gentlemen, who asked permission to 
form and exploit a political party for the securing 
of independence by peaceable means. I told them 



THE DIRECT PRIMARY 101 

they could do so without securing my permission, 
but I cautioned them that, as there were men then 
engaged in active and open revolt against the 
government, the organization and maintenance of 
such a party, before peace was restored, might 
subject them to annoying curiosity and suspicion 
of government agents and officers. They said 
that they and their people were used to securing 
direct authority from the Governor-General in 
Spanish times for such a political movement and 
they did not wish to go into it unless I approved. 
They wished, therefore, to satisfy me that the 
FiHpinos were capable of self-government, and 
they could do so in a paper they would leave me. 
The argument presented was based on the sta- 
tistics as to education in the Islands and the num- 
ber of offices to be filled in the central, provincial 
and municipal government. As these showed that 
there were twice as many educated people as there 
were offices, they considered their case established, 
because it gave the people of the Philippines the 
benefit of two shifts of public servants, and a peo- 
ple would be unreasonable that wanted more. I 
attempted to explain to them that it was the 
average intelligence of the whole people that con- 
stituted their governmental capacity, and this not 
only because a considerable part of them took part 
in elections, but because of this force of public 



102 POPULAR GOVERNMENT 

opinion coming from the whole people and re- 
straining pubhc servants in every conceivable way. 
I don't think I convinced my petitioners but it 
made me formulate for my own benefit and future 
use a statement of that great saving force in a 
government of a free and intelhgent people. 

But to return to the party primary. A party 
is a voluntary organization, and originally the 
natural theory was that the members of the party 
should be left to themselves to determine how their 
party representatives were to be selected and 
their party principles were to be formulated ; but 
the abuses to which completely voluntary organi- 
zations of this kind led, brought about a change of 
view as to the function of the government with 
reference to such party procedure. 

The first step taken was to provide legal ma- 
chinery and regulations for the holding of party 
primaries and a convention in the local divisions, 
which the party authorities might by proper legal 
notice make applicable to the selection of their 
candidates and the declaration of their principles 
before any election. It was voluntary. It was 
left to the committees of the parties to indicate 
their wish to act under the law by formal notice, 
and then it became binding, and penalties followed 
the breach of its provisions as declared in the 
law. 



THE DIRECT PRIMARY 103 

This legislation, however, did not prove to be 
enough, and so those who wished to bring about 
honest methods in politics determined to make a 
compulsory law for the government of parties 
who proposed to present candidates at any elec- 
tion. Parties thus came to be recognized as official 
entities and the laws for the holding of primaries 
and of conventions have become as specific in their 
provisions and as severe in their penalities for 
violations as the election law itself. The officers 
who are appointed as judges and clerks of regular 
elections are made to discharge similar functions 
in party primary elections, and the State bears 
the expense, on the theory that the whole public 
are interested, that each party should honestly 
select its candidates and declare its principles. 

I fully concur in the critical importance that 
this character of legislation attaches to party 
action, and I do not hesitate to say that we have 
not yet arrived at a satisfactory solution of the 
problem presented. 

It must be obvious to every one that while ail 
members of the party who can vote ought to have 
a voice in the selection of candidates and in the 
determination of principles, it is in the highest 
degree unfair for persons who are not members of 
the party, but members of some other party, to 
exercise any influence in the selection of the can- 



104. POPULAR GOVERNMENT 

didates or the declaring of the principles. So 
the most difficult question in all primary laws is 
the one which confronts the reforming legislator 
on the threshold. It is how to determine properly 
and certainly who are quahfied electors at a party 
primary. The other question, which is its coun- 
terpart, is to discover who are not entitled to 
vote, so that if they do vote, they shall be pun- 
ished and sent to prison for their violation of law 
and justice. Shall the party electorate be limited 
to those who are willing to swear that they voted 
for the party candidates who ran in the last elec- 
tion? Must they have voted for all the candi- 
dates? Would not a vote for a majority of the 
candidates entitle the voter to stand as a regular 
party man and to vote at the party primary ? Or 
must the qualifications be determined not by what 
the voter has done in the past, but by what he 
intends to do in the future? Shall it be enough 
for him to say that he intends . to vote for the 
party candidates and to follow what he under- 
stands to be the party's principles in the next 
election? The advantage of having the qualifica- 
tions fixed by what the voter has done in the past 
is that the definite issue of his quaHfication then 
presented is dependent upon an ascertainable fact. 
If he has not voted as he says he has voted, then 
he is guilty of perjury and guilty of a plain 



THE DIRECT PRIMARY 105 

attempt to defeat the law and secure a vote which 
is illegal. Prosecutions for frauds of this char- 
acter would soon keep voters in primaries of their 
own party. 

On the other hand, it is urged that if men have 
conscientiously reached the conclusion that they 
intend to be Republicans or Democrats thereafter, 
it would seem that they ought to have a right to 
partake in the selection of the candidates to 
represent them. But the objection to this is that 
when it comes to an oath as to what they are 
going to do, there is no means of determining, 
except in the mind of the man who is taking the 
oath, what the fact is. He is swearing as to a 
mental state, and he is the best witness of that 
state, and nobody can contradict him in any such 
way as to subject him to conviction for perjury, 
even if he never intended to support the party. 
The fact that he subsequently actually votes for 
some other candidate in the election than the can- 
didate of the party in whose primary he has cast 
a vote, is not clinching evidence of the fraud he has 
committed, because he can say he changed his 
mind and he can hardly be contradicted. 

The evil that has proceeded from this uncer- 
tainty as to the qualifications of party electors has 
become so great that I venture to think that the 
wiser and more practical rule will be to limit party 



106 POPULAR GOVERNMENT 

electors for the purpose of selecting candidates in 
the future to those who supported the party at 
the last election. That is always or generally a 
large enough body to secure a disinterested vote, 
or at least secure a vote that is not under the 
control of any macliine or any pernicious influence. 

The reports leave no doubt whatever, indeed the 
statistics of the elections frequently conclusively 
confirm the conclusion, that in State and other 
primaries, thousands and tens of thousands of 
Democrats vote at Republican primaries, and vice 
versa. It often happens that in one party, a 
primary issue, Kke the selection of a candidate, is 
settled in advance by general agreement as to who 
the candidate shall be or what the principle shall 
be. In such a case the voters of that party feel 
entirely free to go into the primaries of the other 
party, and sometimes, with malice aforethought, 
to vote for the candidate in that party whom it 
will be most easy for the candidate of their own 
party to defeat at the general election. 

Of course this is all wrong. This is not taking 
the voice of the party. It is taking the voice of 
men who are not interested that the party should 
succeed, and who do not intend to be genuine sup- 
porters of the men whom they put upon the party 
ticket. 

In connection with this subject, I am reminded 



THE DIRECT PRIMARY 107 

of an experience I had in local politics in Cincin- 
nati, my home. Soon after I came to the Bar, I 
was living in the 5th Ward, which in those days 
included within its boundaries both a well-to-do 
quarter and one which was not. Our precinct 
had frequently been represented in local Republi- 
can conventions by a man named Martin Muldoon, 
who was reported to have made a modest compe- 
tence in this service. Living in the same precinct 
with me was another reformer named Aaron 
Ferris. He had a most solemn countenance and a 
voice and bearing of the most monitory and mina- 
tory kind. He was a perfect Puritan in type. 
We agreed that something ought to be done to 
oust Martin from his representative functions. 
Accordingly we drummed up as many Repubhcan 
voters as we could through the precinct and urged 
them to be alive to their political duties and attend 
the primary. But we found that we were likely 
to be swamped by many Democrats who had 
always voted for Martin in a Republican primary 
in honorable return for aid which Martin and his 
Republican voters gave some candidate of theirs 
in a Democratic primary. It was agreed that we 
could only escape this result by securing one of 
the judges and by energy in challenging. Ferris' 
qualifications fitted him exactly for the judgeship 
and my then somewhat formidable proportions 



108 POPULAR GOVERNMENT 

seemed to make it appropriate for me to take the 
office of outside challenger. The plan was put 
through without awaking the suspicions of Martin 
to the extent of installing Ferris as judge. The 
first man who came to the polls was Michael Flan- 
nigan. I nearly created a riot by challenging his 
vote. Michael's attitude was that of indignant 
surprise and offended dignity, and his aspect 
became threatening, but I persisted in my chal- 
lenge and stated as a ground that he was a Demo- 
crat and not entitled to vote in a Republican 
primary. Then was vindicated our choice of 
Ferris as a judge. Minos of Crete could not have 
seemed more forbidding as he produced a Bible 
and demanded, in deep tones, of the would-be 
voter that before he give true reply to the ques- 
tions he was about to ask him, he should place his 
hand upon the Book, and repeat after him: "I 
solemnly swear, in the presence of Almighty God, 
as I shall answer at the last day of Judgment, that 
I am Republican" — Ferris had not gone further 
when Flannigan jerked his hand away, retreated 
from the poll, muttering "To h — 1 with the vote." 
The effect was instantaneous and work as Martin 
would, he could bring only a few who would or 
could pass the examination. We had ralHed 
enough of our own side to defeat Martin under 
these conditions and we sent a good man to act as 



THE DIRECT PRIMARY 109 

delegate. But Martin advised me then that that 
would be the last time Aaron Ferris would be per- 
mitted to be a judge at a primary election in that 
precinct. 

This story illustrates the difficulty in holding 
fair primaries, but I agree it does not suggest a 
means of avoiding it that would always succeed. 
Ferrises are not always to be had as judges and 
would-be voters are not always as afraid of an 
oath, however solemn. 

It seems to have been the opinion in the Courts 
of some States that in carrying on an election of 
this sort, no citizen, whatever his party, could be 
deprived of the right to vote in either primary. 
Such a construction may turn upon peculiar lan- 
guage in a state constitution, but the result is so 
absurd in the provision for a party primary that 
it can not for a moment be sustained on general 
principles and is utterly at war with fairness and 
honesty in party control. 

Until some method has been devised successfully 
to prevent this fraud I have been describing, we 
can not be said to have a successful primary law. 
Of course, it is helpful to have party primaries of 
all parties on the same day. In this way, if there 
is a real controversy in all parties, the voters are 
likely to divide themselves according to their real 
and sincere party affihations, because one can only 



no POPULAR GOVERNMENT 

vote in one primary ; but the case of a lively fight 
in one party and none in another is so frequent 
that the difficulty I have suggested is often a 
real one. 

The first impulse, and a proper one, of the 
honest legislator, in dealing with this subject, is 
to give all the members of the party an equal 
voice in the selection of candidates and in the 
declaration of party principles. Therefore all 
the rules which limit the caucus to the active few, 
or which exclude regular members of the party, 
have been properly abolished under such primary 
statutes, and provision is made for every such 
member to cast his ballot. 

The question upon which opinions differ vitally 
is whether these electors of the party shall cast 
their ballots directly for their candidates to be run 
at the general election, or whether they shall select 
delegates to local conventions, the candidates to 
be selected in the local conventions. The modern 
tendency is toward the direct selection of candi- 
dates by the party electors themselves, without the 
intervention of a convention. I am inclined to 
think that for a time at least this elimination of 
the party convention in local politics is a good 
thing. 

Theoretically the convention would be better 
for reasons which can be very shortly stated. If 



THE DIRECT PRIMARY 111 

all the electors, divided into wards and precincts, 
could select honest and intelligent delegates to 
represent them in a convention, and these dele- 
gates were to give their best thought and dis- 
interested effort to the selection of candidates, I 
have no doubt that the candidates selected would 
be better for the party and better for the people 
than the candidates selected directly at a primary. 
And this is because the delegates can better inform 
themselves as to the qualifications of the party 
candidates than can the people at large. And, 
secondly, the delegates of a party have a sense of 
responsibihty in selecting the party candidates 
to secure the support of the people at the general 
election which is utterly absent in the votes which 
are cast by the electors of the party at the direct 
primary polls. There the party electors vote for 
the men who have been brought favorably to their 
attention by the newspapers and other means of 
publicity which the candidates themselves are able 
to adopt and use. They cast their votes very 
much as the electors at a general election cast 
their votes, for the men whom they like, or the men 
whom they know, and frequently without much 
knowledge or preference at all. Wliereas, in a 
convention, the leaders and the delegates have the 
keenest care with respect to what is going to 
happen at the general election. 



112 POPULAR GOVERNMENT 

In the selection of State and national candi- 
dates, this becomes a very important matter. One 
tendency in a direct election of candidates in a 
national party will be to select a popular partisan, 
while that of a convention system will be to take 
the more moderate man whose name will appeal to 
the independent voter. Thus a primary election 
in 1860 would certainly have nominated Seward, 
not Lincoln; in 1876 would have nominated 
Blaine, not Hayes. 

A third objection to the direct election of can- 
didates by the people is the obvious advantage 
which the men with wealth and of activity and of 
little modesty, but of great ambition to be can- 
didates, without real quahfication for office, have 
over the men who, having qualifications for office, 
are either without means or refuse to spend money 
for such a purpose, and are indisposed to press 
their own fitness upon the voters. In other words, 
the direct election of candidates very much 
reduces the probability that the office will seek 
the man. 

Whenever I hear or see the phrase "the office 
seeking the man," I am reminded of a story I have 
frequently told, that I heard when I was on the 
Federal Bench and holding court in Kentucky. A 
Republican Governor had been selected for the 
first time in the history of the State. An old man. 



THE DIRECT PRIMARY 113 

named Aleck Carter, from one of the mountain 
counties of the State, where live the great ma- 
jority of such Republicans as there are in Ken- 
tucky, who had been voting the Republican ticket 
all his life, and apparently to no purpose, 
journeyed down on an old mare from the moun- 
tains to Frankfort, the capital. The Kingdom 
had come and he wished to be there to see, and 
also to get his reward. When he applied for an 
office, he was told that in contrast to Democratic 
methods, this was to be an administration in which 
the spirit of reform was strong and that the 
office was to seek the man. He put up at the 
Capitol Hotel for ten days ; then he changed to a 
boarding house, and finally he merely hired a room 
and rehed on his friends and free lunches for sus- 
tenance. But the hour came when neither money 
nor credit nor Kentucky hospitality could tide 
him over another day and he must go. As he went 
by the Capitol Hotel, where the politicians were 
gathered, an acquaintance called out to him: 
"Aleck, where are you going?" "I am going 
home," said he. "I've heard tell, since I've been 
here, a good mite about an office seeking a man, 
but I hain't met any office of that kind. My 
money's gin out and I'm bound for the moun- 
tains." Then a hopeful thought seemed to strike 
him and he continued, "But if any of 'youuns' see 



114 POPULAR GOVERNMENT 

an office hunting a man, tell 'em that you just seen 
Aleck Carter on his old mare 'Jinny' going down 
the Versailles pike and he was going damn slow." 

Were Aleck yearning for an office under the 
dispensation of direct primaries, he would not be 
embarrassed by any such newfangled fashion in 
official preferment, for it has no vogue in the days 
of the direct primary. 

The direct primary puts a premium on self- 
seeking of an office. After men are nominated as 
party candidates, the party is beliind them, and 
can elect them even though they modestly refrain 
from exploiting themselves. But in the stage 
previous to this, when the candidates are to be 
selected at a direct primary for a party, modest 
but quahfied men are never selected. This sub- 
stantially lessens the number of available candi- 
dates capable by reason of their intelligence and 
experience of filHng the offices well. 

I have thus stated three serious objections to 
the direct election of candidates by the people 
for local offices and for representatives in Con- 
gress and the legislature, and yet I do not think 
that they are sufficient to overcome the present 
necessity of avoiding the evils that have arisen 
from the delegate and convention systems so far 
as these local and district officers are concerned. 
The delegates selected for the local convention are 



THE DIRECT PRIMARY 115 

manj^ of them usually not of a character to resist 
the blandishments and the corrupt means which 
will in such cases be used by bosses and the 
principals of bosses. The local convention of local 
delegates offers such a rich opportunity for 
manipulation of those who are corruptible, — 
things are done so quickly by committees of cre- 
dentials, and on resolutions, — that the opportu- 
nity of the unscrupulous boss in such a convention 
is very great. I sympathize, therefore, with the 
movement to abolish the local convention, at least 
until the exercise of the direct primary shall have 
broken up the local machines and shall have given 
an opportunity to the electors of the party, even 
with the disadvantage of inadequate information, 
to express their will. 

When, however, the question is of the State 
convention and its continuance in politics, I am 
strongly inclined to a different opinion. The 
delegates who are sent to a state convention should 
be voted for directly by the same electorate that 
selects the representatives to the legislatures, and 
their character is likely to be very much higher 
than that of the delegates to a local convention. 
The circumstances offer as much reason for con- 
fidence in their honesty as in that of those who are 
selected for the legislature by the primary. The 
unit of a national party in a practical sense is the 



116 POPULAR GOVERNMENT 

State party. That is the body that helps to for- 
mulate a political poHcy for the national party. 
If the party has a majority in the legislature, it 
ought to have a State policy, the determination 
and declaration of which can best be had in a 
convention. It is not indispensable that the 
parties in local controversies should announce 
principles at all, and, therefore, the necessity for 
a local convention on that account is really small* 
But when it comes to a party of the State, there 
ought to be some body having representative 
authority to declare what the party policies are to 
be. Now in some States there has been substi- 
tuted for the party convention an assembly of 
party candidates, and in others of the elected 
party managers from each county, but none of 
these methods secures a rehable expression of what 
the party opinion really is as well as a State con- 
vention with delegates selected for the purpose. 
I do not mean to say that there is not any 
opportunity in a State convention for political 
manipulation. I do not mean to say that corrupt 
politicians will not try to be influential, and will 
not succeed in some directions, as they wiU under 
any system, but I do mean to say that the oppor- 
tunity for manipulation and the defeat of the will 
of the party electors is very much less in a state 
convention than it is in a local convention. It is 



THE DIRECT PRIMARY 117 

the best means of securing an authoritative ex- 
pression of the party, and offers comparatively 
little opportunity for boss control if the primaries 
at which the delegates are selected are conducted 
by the same method as in the direct selection of 
candidates for legislative representatives. 

The holding of a State convention gives an 
opportunity for consultation among party 
leaders. Party leaders are not necessarily dis- 
honest men. On the contrary, the great majority 
of them are honest and anxious for the party to 
succeed by serving the people well in the govern- 
ment with which the party may be entrusted. 
Consultation should not be tabooed. Conference 
and discussion lead to wise results, and conference 
and discussion and deliberation with reference to 
party policies are not possible at the polls. They 
are not possible when the electors number into the 
millions. The abolition of the State convention 
in my judgment, though it may be the result of 
the present movement, is an extreme measure 
which subsequent experience wiU show to have been 
a mistake. 

I think it will be found — at least that has been 
the result of my experience in hunting for 
material for judicial appointments — that the 
method of selecting State candidates through 
direct vote, rather than by nomination of a con- 



118 POPULAR GOVERNMENT 

vention, has not been as successful in securing as 
good judicial material as the old method of con- 
ventions. The result in such direct primaries is 
unduly affected by the fortuitous circumstance as 
to whose name is at the head of the Hst of candi- 
dates, or by the fact that he is the incumbent and 
his name but not his qualification is known. 

The direct election of candidates for office by 
the people shows better results in small communi- 
ties than it does with electorates like that of a 
state, because the character of local candidates 
can be very much more certainly and definitely 
known, and the choice made with more discrimina- 
tion by the people of a local neighborhood. 

What I have said with respect to a state con- 
vention appHes even more forcibly to a national 
convention. There are public men of influence 
who contend that we ought to have a general 
national primary to settle upon candidates. I 
think this is carrying the direct action of the 
people in the selection of candidates far beyond 
what is practicable. The defects of the present 
primary system, especially that one which I have 
already pointed out, the impossibility of prevent- 
ing voters of the opposition from voting in the 
party primary, would be emphasized to such a 
point that the selection of a candidate by popular 
vote would be much less satisfactory than the 



THE DIRECT PRIMARY 119 

system of a convention attended by delegates 
selected by properly conducted primaries in con- 
gressional districts, or by a convention of a state. 
The necessity for a national convention ultimately 
to determine the national party policy, and to 
consider carefully the quaHfications of candidates, 
I hope will always be recognized. There is not 
any objection — indeed there ought to be no hesi- 
tation about it — to making the representation in 
the convention proper and fair, so that the voters 
of the party may have an influence as nearly pro- 
portionate to the influence they wield in the election 
as is practicable. If there are rotten boroughs, 
as there are doubtless, under the present system, 
they ought to be eradicated, but to go to the other 
extreme of abolishing a convention which has 
always been the method of selecting a President, 
is, it seems to me, altogether unwise. 

There is a tendency on the part of those who 
favor the direct election by the people at a party 
primary in all cases, to resort to loud declamation 
in favor of a method that gives all people their 
choice. I have commented on the fact that the 
electors are not all the people, and that others 
are interested in the government beside the elec- 
tors; but I submit that the question is not to be 
governed by the general declaration that an 
expression of all the people at an election is 



120 POPULAR GOVERNMENT 

necessarily better than the expression of their 
delegates in convention, and that the mere asser- 
tion is not proof. The real end that we have in 
view is a better government for each individual 
and for all the people, and if we can get better 
candidates, and if we can more surely secure the 
intelHgent and deliberate consideration of party 
principle through conventions, then we should 
adopt conventions because what we are after is 
good results. The voting of all the people on an 
issue, or for a candidate, is not the end. It is a 
means, and if it is not the best means of securing 
good candidates and of accurately interpreting 
the dehberate judgment of the people, then it is 
not the means that ought to be adopted. 

I close the discussion of this general primary, 
having pointed out the arguments for and against 
the features which are now forming the subject of 
discussion. While the general primary is always 
classed as part of the so-called reforms of the 
initiative, the referendum and the recall, I do not 
consider that they have any necessary relation. 
It is very essential that we should have party 
machinery which will prevent as far as practical 
corrupt bossing of the party and consequent 
corrupt bossing of the community, and the direct 
primary in local elections with certain limitations 
is a practical step to oust the boss and destroy 



THE DIRECT PRIMARY 121 

the machine built of patronage and corruption. 
This all honest men are in favor of, if the means 
proposed is reaUy effective. 

We must have party government in this coun- 
try. A popular government can not be made 
efficient without parties, and as parties now 
include millions of voters, it is essential that some 
means should be determined by which the party 
win can be best interpreted into the selection of 
candidates and the declaration of principles. 

I have described the machinery of old and the 
machinery at present, and that which is proposed. 
I have attempted to point out the defects in each, 
and I look forward to the next ten years as prob- 
ably furnishing a composite system which shall 
give us the best practical result. Of course, no 
system can avoid the effect of corruption. None 
can be boss or machine proof, but some method 
can be adopted which will minimize these evils and 
bring about the healthy control of party agencies 
by the people who compose it. 



VI 

"In Order to Form a More Perfect Union" 

The first purpose stated in the preamble of the 
Constitution for its framing and adoption was "in 
order to form a more perfect union." The Arti- 
cles of Confederation, under which the War of the 
Revolution had been conducted, were inadequate 
in many particulars. The Continental Congress 
really had but little power. It conducted the war 
through committees; it appointed the command- 
ing generals, but its requisitions upon States for 
money and men were nothing but recommenda- 
tions, sometimes followed and sometimes ignored, 
and its exercise of the function of law-making was 
very limited. 

The condition of the colonies after the recogni- 
tion of our independence by Great Britain was 
not encouraging. There was no authority any- 
where sufficient to better conditions. Hamilton's 
description was not an exaggeration when he 
wrote in The Federalist in Paper XV : 

"We may indeed, with propriety, be said to 
have reached almost the last stage of national 
humiHation. There is scarcely any thing that can 
wound the pride, or degrade the character, of an 



"A MORE PERFECT UNION" 123 

independent people, which we do not experience. 
Are there engagements, to the performance of 
which we are held by every tie respectable among 
men? These are the subjects of constant and 
unblushing violation. Do we owe debts to for- 
eigners, and to our own citizens, contracted in a 
time of imminent peril, for the preservation of our 
political existence? These remain without any 
proper or satisfactory provision for their dis- 
charge. Have we valuable territories and impor- 
tant posts in the possession of a foreign power, 
which, by express stipulations, ought long since 
to have been surrendered? These are still re- 
tained, to the prejudice of our interest not less 
than of our rights. Are we in a condition to 
resent, or to repeal the aggression? We have 
neither troops, nor treasury, nor government. 
Are we even in a condition to remonstrate with 
dignity? The just imputations on our own faith, 
in respect to the same treaty, ought first to be 
removed. Are we entitled, by nature and compact, 
to a free participation in the navigation of the 
Mississippi? Spain excludes us from it. Is public 
credit an indispensable resource in time of public 
danger? We seem to have abandoned its cause as 
desperate and irretrievable. Is commerce of im- 
portance to national wealth? Ours is at the 
lowest point of declension. Is respectability in the 



124 POPULAR GOVERNMENT 

eyes of foreign powers, a safeguard against 
foreign encroachments? The imbecihty of our 
government even forbids them to treat with us. 
Our ambassadors abroad are the mere pageants of 
mimic sovereignty." 

After speaking of the unnatural decrease in 
the value of land, and the absence of private 
credit, he said : 

"To shorten an enumeration of particulars 
which can afford neither pleasure nor instruction, 
it may in general be demanded what indication is 
there of national disorder, poverty, and insignifi- 
cance, that could befall a community so pecu- 
liarly blessed with natural advantages as we are, 
which does not form a part of the dark catalogue 
of our public misfortunes?" 

He points out the cause as follows: 

"The great and radical vice, in the construction 
of the existing confederation, is in the principle 
of legislation for states or governments, in their 
corporate or collective capacities, and as contra- 
distinguished from the individuals of whom they 
consist." 

He emphasizes the remedy in these words : 

"But if we are unwilling to be placed in this 
perilous situation; if we still adhere to the design 



"A MORE PERFECT UNION" 125 

of a national government, or, which is the same 
thing, of a superintending power, under the direc- 
tion of a common council, we must resolve to 
incorporate into our plan those ingredients, which 
may be considered as forming the characteristic 
diiFerence between a league and a government ; we 
must extend the authority of the union to the 
persons of the citizens — the only proper objects 
of government." 

Another and very important condition in the 
Confederacy which created the desire for a more 
perfect union is stated by Madison, in the forty- 
second number of The Federalist, where he com- 
ments on the power given Congress in the pro- 
posed new constitution to regulate commerce 
between the States. He says: 

"The defect of power in the existing confed- 
eracy, to regulate the commerce between its 
several members, is in the number of those which 
have been clearly pointed out by experience. . . . 
A very material object of this power was the relief 
of the states which import and export through 
other states, from the improper contributions 
levied on them by the latter. Were these at liberty 
to regulate the trade between state and state, it 
must be foreseen that ways would be found out to 
load the articles of import and export, during the 



126 POPULAR GOVERNMENT 

passage through their jurisdiction, with duties 
which would fall on the makers of the latter, and 
the consumers of the former. We may be assured 
by past experience that such a practice would be 
introduced by future contrivances ; and both by 
that and a common knowledge of human affairs, 
that it would nourish unceasing animosities and 
not improbably terminate in serious interruptions 
of the public tranquillity." 

Thus we see that the use of the expression "more 
perfect union," if it was intended to imply that 
the union then existing was anything like perfect, 
was unjustified and inaccurate. The union was so 
lacking in a firm bond between its members that it 
really is wonderful that the fabric of a govern- 
ment, if it can be so called, did not come 
tumbling down before a change was made. 

The Constitutional Convention was held behind 
closed doors and the several accounts of its pro- 
ceedings and the debates are not complete or full. 
All students of the Constitution are greatly in- 
debted to Prof. Max Farrand, of this university, 
for assembling the accounts into one work, where 
a comprehensive view of all that is known of the 
making of that wonderful instrument can be had, 
and for his excellent history on the subject. 

After it was signed and reported to the Con- 



"A MORE PERFECT UNION" 127 

gress, Hamilton, Madison and Jay joined in the 
work of expounding and justifying it in The 
Federalist, There were many who opposed it with 
vigor, and that largely because it greatly reduced 
the power of the then independent States. Clinton 
of New York, Samuel Adams of Massachusetts, 
and Patrick Henry of Virginia, were among those 
who doubted and objected. The feeling which had 
roused opposition to the ratification by the States, 
at once upon its going into force led to a con- 
troversy over its construction, and to a movement 
for its amendment. Parties were formed on these 
issues. Mr. Jefferson and the strict construc- 
tionists who exalted the power of the States were 
the Republican party, which has now become the 
Democratic party. Hamilton, Adams, Marshall 
and others who favored a strong central govern- 
ment and a curtaiHng of the power of the several 
States, in order to make a Nation, were the Fed- 
eralist party. Mr. Jefferson insisted that the 
Constitution did not contain a sufficient protection 
to the individual, and there were, therefore, pro- 
posed in Congress, at its first session, ten amend- 
ments, which were ratified on the fifth of Decem- 
ber, 1791. The first eight of these were really a 
bill of rights to protect individuals against the 
aggression of Congress and Federal authority. 
It may be as well to note at this point that the 



128 POPULAR GOVERNMENT 

original bill of rights of the Federal Constitution 
was not a restraint of the State governments 
against the infraction of individual rights, but a 
restraint of the National Government. The Four- 
teenth Amendment was adopted July 20, 1868. It 
placed in the hands of the Federal Government the 
enforcement of the personal rights of every person 
in the United States. That section provides "No 
state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of 
the United States, nor shall any state deprive any 
person of Hfe, hberty or property without due 
process of law, nor deny to any person within its 
jurisdiction the equal protection of the laws." 

It is not necessary to go into a discussion of the 
full scope of this amendment and the various 
decisions construing it. It is sufficient to say that 
it vests in the National Government the power and 
duty to protect, against the aggression of a 
State, every person within the jurisdiction of the 
United States in most of the personal rights, 
violation of which by Congress is forbidden in the 
first eight amendments to the Constitution. 

The ninth amendment provided that the enu- 
meration in the Constitution of certain rights 
should not be construed to deny or disparage 
others retained by the people, and the tenth laid 
down the rule of interpretation that the powers 



"A MORE PERFECT UNION" 129 

not delegated to the United States by the Consti- 
tution and not prohibited by it to the States were 
to be considered as reserved to the States respec- 
tively or to the people. These two clauses were 
intended to avoid too wide a construction of the 
national powers under the Constitution and were 
proposed and insisted upon by the followers of 
Jefferson. 

The eleventh article provided that the judicial 
power of the United States should not be con- 
strued to extend to any suit in law or equity com- 
menced or prosecuted against one of the United 
States by citizens of another State or by citizens 
or subjects of any foreign State. This was pro- 
posed at the first session of the third Congress, 
also by the followers of Jefferson, and was adopted 
to avoid the effect of the decision of the Supreme 
Court in Chisholm vs. Georgia in 1793, that a 
State might be sued by a citizen of another State. 
This amendment exalted the sovereignty of the 
States. One of usual attributes of sovereignty in 
a government is immunity from suit in its courts. 
The amendment was, therefore, a victory for the 
States' rights men and for the narrower view of 
the Constitution. 

From the first, then, the issue was as to what 
kind of "a more perfect union" had been estab- 
lished. Jefferson had not been a member of the 



ISO POPULAR GOVERNMENT 

Convention that made the Constitution and was 
doubtful of its wisdom. He finally carried Madi- 
son with him in his strict construction views, 
although the latter had been one of the principal 
agents in framing the instrument and in bringing 
about its adoption. 

The Federalist party, of which Washington may 
be said to have been the leader, and of which 
Hamilton was the most able exponent, was in 
control of the administration for three presi- 
dential terms, the two terms of Wasliington and 
the one of Adams, and the Judges appointed to 
the Supreme Court were of that political com- 
plexion. The first Chief Justice was John Jay. 
It is interesting to note that Mr. Jay resigned the 
ofiice of Chief Justice to become an Ambassador 
of the United States to Great Britain, for the 
purpose of negotiating a treaty with Great 
Britain called "Jay's Treaty," which subjected 
him to the bitterest partisan denunciation. 
"V\^en Jay returned home, and the Chief Justice- 
ship became vacant, he was offered a reappoint- 
ment by President Adams. He declined it because 
he did not think the Supreme Court was suffi- 
ciently respected and did not have sufficient 
power. Considering the far-reaching influence of 
the man who took the place, Jay's reasons for 
declining now sound strange. 



"A MORE PERFECT UNION" 131 

Upon Jay's refusal to take the office again, 
President John Adams appointed John Marshall, 
who was confirmed by the Senate, but who did not 
take his seat upon the Bench until after the in- 
stallation of Mr. Jefferson in the Presidency. 
Until that time he acted as Secretary of State. 

The transfer of the government from Adams to 
Jeiferson was not accompanied by an excess of 
courtesy on either side. Mr. Adams refused to 
ride with Mr. Jefferson to the Capitol or to attend 
the inauguration. Indeed he left Washington the 
night before. On the other hand Mr. Marshall is 
said to have remarked of the manner of Mr. Madi- 
son, the new Secretary, in taking possession of 
the Department of State, that he, Marshall, was 
glad to escape with his hat. 

Although the Federalist party died as the effect 
of the popular election of 1801, which brought 
Jefferson to the Presidency, and although its 
opponent was triumphant in its elections, and 
reigned supreme as the Democratic party for 
nearly forty years, the construction which was 
put upon the Constitution during that long period 
reflects Federalist views. They were embodied in 
the great judgments dehvered by the greatest 
Judge that America or the World has produced — 
John Marshall. 

Had the views of Jefferson prevailed in the con- 



132 POPULAR GOVERNMENT 

struction of the Constitution, the effect of that 
instrument would have been determined by the 
independent and varying judgments of the several 
States, and our union would have been treated as 
a compact of sovereign members, rather than as a 
sovereign nation. From time to time, Jefferson 
and his successors appointed judges upon the 
Supreme Court with a view to neutralizing the 
influence and views of Marshall. But so strong 
was the personality of the great Chief Justice, so 
powerful his intellectual force, so clear his states- 
manlike conviction that this was and must be a 
nation, that enough of the new men put upon the 
Court were changed to his view to keep the States' 
rights men always in the minority, and the control 
of Marshall continued until his death in the admin- 
istration of Andrew Jackson. 

In the case of Marbury vs. Madison, Marshall 
laid down the proposition which insured the 
power of the Federal Supreme Court to declare 
invalid any law of Congress which was held by the 
Court to be in violation of the Constitution. This 
doctrine was denounced by Jefferson as a usurpa- 
tion by the Court. In Cohens vs. Virginia, the 
Chief Justice announced the supremacy of the 
Federal Supreme Court in the consideration of 
Federal questions and its power to overrule the 
decisions of a Supreme Court of a State in such 



"A MORE PERFECT UNION" 133 

matters and to set aside the law of a State which 
was in conflict with the Federal Constitution. In 
McCulloch vs. Maryland and in Osbom vs. the 
Bank, the same great jurist, as the organ of the 
Court, settled for all time the liberal construction 
of the Constitution in conferring powers upon the 
National Government to be implied from the 
express powers. The Court refused to limit the 
implication of powers to those which were indis- 
pensable to the exercise of the express powers, 
but held that any method of carrying out the 
express powers which was reasonably proper and 
adapted to the purpose, was in the discretion of 
Congress. 

When Jefferson and Madison as political fac- 
tors were seeking to minimize the national powers 
under the Constitution, they were merely repre- 
senting the spirit of state sovereignty which was 
strong in Jefferson, because he feared danger to 
individual rights and a monarchical tendency in a 
national construction of the Constitution. In com- 
munications to Congress, in published letters, and 
in every other way, he thundered against the 
power of the Supreme Court and the construction 
that it was putting upon the Constitution in 
exalting and broadening the national sovereignty 
and minimizing the power of the States. But it 
was all to no purpose, and he had the irritating 



134 POPULAR GOVERNMENT 

disappointment of finding his own appointees, as 
I have already indicated, concurring in the views 
of Marshall and making the decisions of the 
Supreme Court consistent from the first in a 
Federalistic construction of the fundamental 
instrument of government. The school of Jeffer- 
son was continued by Calhoun, the great rival of 
Webster, one of the greatest statesmen of any 
time, and one of the strongest logicians and politi- 
cal writers. Calhoun attempted in South Caro- 
lina to set at naught the collection of customs 
duties, on the ground that the Federal customs 
law violated the Constitution. In doing this, he 
encountered a vigorous assertion of national 
authority by Andrew Jackson. But, on the other 
hand, Andrew Jackson denounced the construction 
of the Supreme Court, which upheld the legislation 
establishing a United States Bank, and refused to 
recognize the law as valid, or to follow the Court's 
decision. But the judgments of the Supreme 
Court were permanent, and while one President 
nulhfied or disregarded them, others succeeded 
and ultimately the view of the Court was estab- 
lished. 

When Marshall died in 1835, the question of 
anti- and pro-slavery had come to be the chief 
issue before the people of the United States. And 
the tendency of the dominant Democratic party 



"A MORE PERFECT UNION" 135 

was toward the maintenance of slavery as entitled 
to protection under the Constitution. The slave- 
holding party was strong in its wish to extend 
slave-holding territory with a view to spreading 
the doctrine and strengthening its influence. In 
Section 2, Article 4, the Constitution of the 
United States provides as follows : 

"No person held to service or labor in one state 
under the laws thereof, escaping into another, 
shall in consequence of any law or regulation 
therein be discharged from such service or labor, 
but shall be delivered up on claim of the party to 
whom such service or labor may be due." 

Under the authority of this provision Congress 
passed what was known as the fugitive slave law. 

It ought to be said that Jeff^erson and Madison 
were by no means pro-slavery men. Jefferson was 
anxious that slavery should be abolished, and it 
could almost be said that early in the constitu- 
tional and political history of this country there 
was no tense issue in respect to slavery. The slave 
trade in the United States, the Constitution pro- 
vided, might be forbidden by Congress after 1808. 
The States' rights attitude of neither Jefferson nor 
Madison could be attributed to the influence of 
this issue. However, the development of the 
cotton industry through the South through the 



136 POPULAR GOVERNMENT 

invention of the cotton gin, and the supposed 
necessity for the use of slave labor in raising 
cotton, gave to the South a strong interest in 
maintaining it as a social institution, and made 
its preservation the chief feature in the Demo- 
cratic party's doctrine. 

When, therefore, the slave property became 
valuable, as it did in the time of Jackson and later, 
the enforcement of the fugitive slave law became 
most important to the pro-slavery party in Con- 
gress and in the nation. Chief Justice Taney, 
who succeeded Marshall, and the other members 
of the Supreme Court, therefore, found no diffi- 
culty. Democrats as a majority of them were, in 
maintaining the supremacy of national authority 
upon State territory in the execution of laws 
passed in pursuance of the constitutional power 
and duty of Congress to provide for the return of 
fugitive slaves. 

Decisions made on this subject strengthened the 
national construction of the Constitution by the 
Supreme Court in spite of the division in the 
Democratic party, and in spite of the contention 
by the southern branch of the party that secession 
was constitutional, and properly within the power 
of the States choosing to resort to it. Indeed the 
fugitive slave law put the abolitionists and those 
who sympathized with them in the attitude, tern- 



"A MORE PERFECT UNION" 137 

porary though it was, of opposition to the 
national authority on State soil. 

Thus by a series of fortuitous circumstances, the 
construction of the Constitution has always been 
entrusted to a court that was naturally incHned 
to uphold the national power and not to empha- 
size unduly the sovereignty of the States. 

When the war came on, the question submitted 
to the arbitrament of war was the right of seces- 
sion, and that of course was decided in the nega- 
tive by the result at Appomattox. Since then no 
question has been made by any party or school of 
poHtics as to the views that Marshall enforced — 
in respect to the national power. 

This history is a striking tribute to the power 
of the Supreme Court in shaping the destinies of 
the nation and to the law-abiding character of 
the people of the country in that, however much 
political parties may have temporarily differed 
from the judgments of that Court, those judg- 
ments have ultimately prevailed. 

Of course there was the Dred Scott decision, 
involving the status of a free negro as to citizen- 
ship, which, delivered late in the fifties, aroused the 
indignation of the anti-slavery party against Chief 
Justice Taney and the majority of the Court, 
and called forth the careful but forcible criticism 
of Lincoln and the unmeasured abuse of the aboli- 



138 POPULAR GOVERNMENT 

tionists. That question, however, was removed 
from judicial controversy by the war and the war 
amendments to the Constitution, and at any rate 
had only indirect bearing on the main question of 
the rights of the States and the powers of the 
general Government. 

Circumstances in the growth of the country 
have served greatly to increase the volume of 
Federal power. This has not come from a new 
construction of the Constitution, but it has come 
from the fact that the Federal power has been en- 
larged by the expansion of the always conceded 
subjects of national activities. It is true that 
there was a judgment of the Supreme Court as far 
back as 1846, in the case of the Genesee Chief — 
Chief Justice Taney delivering the decision — which 
had the effect to increase largely the Federal ju- 
risdiction in one direction. The maritime jurisdic- 
tion of the admiralty courts in England had been 
limited to tidal waters because in England no other 
waters were navigable. In the United States, 
however, there were thousands of miles of river 
navigation and lake navigation that were beyond 
the reach of ocean tides. The question was 
whether the maritime jurisdiction of the United 
States Government reached to navigable rivers 
and lakes. Congress passed a law extending the 
jurisdiction of tho Federal Admiralty Courts to 



"A MORE PERFECT UNION" 139 

such waters and the Supreme Court sustained the 
law, reversing some decisions that tended to 
another view. This was one apparent enlarge- 
ment of Federal jurisdiction in the history of the 
Supreme Court, but it was a natural and neces- 
sary application of the Constitution in the light 
of the common law and its proper adaptation to 
our circumstances. It is this power which now 
places all navigable rivers and harbors within the 
control of the United States, and leads to the 
passage of the rivers and harbors bills appropriat- 
ing money for their improvement, with a view to 
their navigation. 

A great increase in the volume of Federal juris- 
diction not due to an enlargement of its defined 
limits, but due to the increase of business within 
those limits, arises from the power given to Con- 
gress by the Constitution to regulate commerce 
between the States, with the Indian tribes and 
with foreign nations. As I have stated, it was 
the interference with interstate commerce by State 
obstruction that was one of the chief reasons for 
bringing the people together into the formation of 
a Federal Constitution. Originally the business 
between the States was considerably less than the 
business done within the States, so that the 
national control of interstate commerce seemed 
less important than regulation by the States of 



140 POPULAR GOVERNMENT 

their own commerce. But with the invention of 
steam navigation of waters, and with the con- 
struction of railroads, the interstate commerce of 
the country has increased from one-fourth of the 
entire country's commerce to three-fourths of it. 

In 1887 a law was passed organizing the Inter- 
state Commerce Commission, and delegating to it 
certain regulative powers in respect to railroad 
rates in traffic between the States. This law has 
been amended and reamended and amended again 
until now the control exercised over interstate 
commerce by the Interstate Commerce Commission, 
when that commerce is carried by railroads, is 
rounded and complete in the regulation of rates, 
and in other matters affecting the interest of the 
public. Regulation of express companies and of 
telegraph and telephone companies in their inter- 
state business has also been entrusted to the 
Commission. 

Then again, the necessities of modem govern- 
ment and the tendency toward greater paternal- 
ism have induced Congress to vest, by statute, in 
the general Government, powers that under the 
Constitution were impliedly within congressional 
creation, but which had been allowed to lie dor- 
mant in view of the supposed lack of public neces- 
sity for their exercise. Thus, as an outgrowth of 
the power of regulating commerce, comes the anti- 



"A MORE PERFECT UNION" 141 

trust act, which forbids the organization of busi- 
ness combinations to do an interstate commerce 
business by combinations or conspiracies in re- 
straint of interstate trade, or to establish monop- 
olies therein. This has thrown into Federal 
jurisdiction a most important power, the exercise 
of which is now revolutionizing and purifying 
business methods and ridding them of unfair com- 
petition, of unjust suppression of fair competition, 
and of irresponsible but powerful monopolies and 
private despotisms in each large branch of indus- 
try. These colossal combinations are gradually 
being dissolved under the influence of the anti- 
trust law and the action of our Federal Courts. 

Another great addition to the volume of Fed- 
eral jurisdiction has arisen under the same clause 
of the Constitution in the adoption of the pure 
food act. The Federal Government has no power 
to interfere with the food products grown or made 
and used in a State, but it has the power to regu- 
late commerce between the States and to say what 
are proper subjects of that commerce, and to 
prevent the use of interstate commerce for the 
circulation of that which may injure the people 
reached through such commerce. It, therefore, 
has the power to insist that shippers shall comply 
with the regulations looking to the purity of the 
food products and of the drugs and medicines 



142 POPULAR GOVERNMENT 

which they make the subjects of interstate com- 
merce. 

Bills have been urged upon Congress to forbid 
interstate commerce in goods made by child labor. 
Such proposed legislation has failed chiefly be- 
cause it was thought beyond the Federal power. 
The distinction between the power exercised in 
enacting the pure food bill and that wliich would 
have been necessary in the case of the child labor 
bill is that Congress in the former is only pre- 
venting interstate commerce from being a vehicle 
for conveyance of something which would be 
injurious to people at its destination, and it might 
properly decline to permit the use of interstate 
commerce for that detrimental result. In the 
latter case, Congress would be using its regulative 
power of interstate commerce not to effect any 
result of interstate commerce. Articles made by 
child labor are presumably as good and useful as 
articles made by adults. The proposed law is to 
be enforced to discourage the making of articles by 
child labor in the State from which the articles 
were sliipped. In other words, it seeks indirectly 
and by duress, to compel the States to pass a 
certain kind of legislation that is completely 
within their discretion to enact or not. Child 
labor in the State of the shipment has no legiti- 
mate or germane relation to the interstate com- 



"A MORE PERFECT UNION" 143 

merce of which the goods thus made are to form 
a part, to its character or to its effect. Such an 
attempt of Congress to use its power of regulat- 
ing such commerce to suppress the use of child 
labor in the State of shipment would be a clear 
usurpation of that State's rights. 

Another recent increase in the volume of Fed- 
eral business is due to an application of the same 
clause of the Constitution to what is known as 
the white slave business, that is, the transfer of 
women from one State to another for purposes of 
prostitution and the spread of vice. 

Take another instance under another head of 
Federal jurisdiction. The post office has proved 
a most convenient means of perpetrating fraud by 
sending letters to people who, influenced by false 
pretenses contained in the letters, part with their 
money. This has led to a statute punishing those 
who use the post office to defraud. Acts of this 
sort are generally cognizable in the State as the 
crime of obtaining money under false pretenses. 
The fact, however, that the scheme is usually a 
conspiracy that covers many States, and that 
there is difficulty in securing the necessary wit- 
nesses in a State court has brought into the 
Federal Court a large volume of business of this 
kind. 

Then within the last Administration, the func- 



144 POPULAR GOVERNMENT 

tions of the Post Office Department have been 
extended to include the maintenance of Postal 
Savings Banks and a Parcels Post. These new 
enterprises are bound to involve wider Federal 
usefulness and greater manifestation of Federal 
authority. 

The addition to the business of the National 
Government in its executive and judicial branches, 
due to the enforcement of all these statutes, is 
enormous and is an explanation of why the central 
Government seems to have grown at the expense 
of the States. 

Moreover, the Spanish War thrust on the Gov- 
ernment at Washington the full care and super- 
vision of the Philippines and Porto Rico, and their 
population of 9,000,000 of people. The Piatt 
Amendment gives a quasi-governmental responsi- 
bility in Cuba. Then the construction and main- 
tenance of the Panama Canal and the government 
of the Canal Zone increase greatly the volume of 
our strictly national affairs. 

This great expansion of Federal activities has 
been almost within the present generation and 
within the recollection, and by the agency, of 
living men; but it has not changed the form of 
our government, nor has it lessened our obHgation 
to respect the sovereign rights of the State. 

This brings me to a consideration of the impor- 



"A MORE PERFECT UNION" 145 

tance of maintaining the constitutional autonomy 
of our States. Our Federal system is the only 
form of popular government that would be possi- 
ble in a country like ours, with an enormous terri- 
tory and 100,000,000 population. There is a 
great homogeneity among the people, greater 
indeed than many of us suppose, but, on the other 
hand, not only the mere geographical differences, 
but the differing interests of the people in differ- 
ent locaHties, require that a certain part of their 
government should be clearly within their own 
local control and not subject to the interference of 
people living at a great distance from them. But 
for this safety valve by which people of one State 
can have such State government as they choose, 
we would never be able to keep the union of all 
the people so harmonious as we now have. The 
friction that would occur between different parts 
of the country under any other system is well 
illustrated by the working out of the issue of 
national conservation. 

The public domain in lands west of the Missis- 
sippi and Missouri rivers was changed into private 
ownership through the homestead law, the pre- 
emption acts, the grants to the Pacific Railroads, 
the stone and timber act, the reclamation act and 
other land legislation. The administration of 
these acts was not rigid, but lax in accord with 



146 POPULAR GOVERNMENT 

the public sentiment of the people who were pio- 
neering and forgot everything in the zeal for 
expanding the settlement of the country. About 
seven years ago the whole country woke up to the 
fact that vast areas had passed to private and 
corporate ownership without compHance with law 
and that much of the valuable land of the govern- 
ment had gone. The necessity for preserving the 
forests pressed itself upon the minds of all the 
people and there came a public demand for stricter 
enforcement of the land laws, for recovery of 
those lands lost through fraud that could be 
recovered and the punishment of the conspirators 
in the fraud. The cry was for national conserva- 
tion and a very necessary and useful doctrine it 
has proved to be. 

Now that the sharpness of the pubHc attention 
in the East has been somewhat abated, there has 
come from the West a complaint that finds support 
in all the public land States that a certain rigidity 
and delay in making patents under the land laws 
have created a halt in development wherever the 
public domain is found, and that the withdrawal 
of coal lands, oil and gas lands, phosphate lands, 
water power sites, with a view to the passage of 
a conservation law for leasing rather than selling 
outright these sources of national wealth, growing 
more valuable every day, is a wrong policy and 



"A MORE PERFECT UNION" 147 

that the people of the States where these lands 
are should now be given an opportunity quickly 
to acquire the necessary title to them and to 
develop them and expand the productiveness of 
those States. The feehng is becoming more acute 
and the politics of whole States are turning upon 
it. Some reasonable adjustment of the trouble 
will have to be reached. The case is an exception 
because generally matters having such an imme- 
diate local importance are within the control of 
the people of the State. But the asperity and 
vigor of the complaints illustrate very well the 
inevitable result if everything were regulated 
from Washington and the State governments 
were reduced to nothing but agencies of the 
National Government. 

Again, the great financial resources available to 
the Federal Government by use of its taxing power 
offer a temptation to those who would spend for 
local purposes without the burden of paying heavy 
taxes at home. The South with its natural poHti- 
cal tendencies and as the result of its political 
history would be naturally in favor of a strict 
view as to what are proper objects of national 
expenditure, but since the abolition of slavery and 
since the disappearance of the political issue as 
to the voting of the negroes in the South, in other 
words, since the practical nullification of the fif- 



148 POPULAR GOVERNMENT 

teenth amendment in those States, there has been 
a revolution of feeling and a strong impulse on 
the part of southern politicians to favor national 
legislation to accomplish many purposes which 
had been denounced as unconstitutional in earher 
days. In other words, we find from the South and 
from the West a willingness to have the National 
Government spend a large part of its receipts in 
enterprises that will inure to the benefit of the 
State communities and will be paid for more 
largely by people living in States not benefited 
than by the people of the States which are. 

This has been one of the criticisms directed 
against the river and harbor bills and against 
public buildings bills. They have been called the 
"pork barrel" bills. They have been usually 
attacked in those parts of the country that had 
to furnish most of the "pork" and got little of it, 
that is, the populous Eastern and Middle States. 
There are now organizations in the older part of 
the country whose purpose is to devise plans for 
Federal improvements there which will give the 
people of that section what is regarded as their 
share. 

Criticism of public improvement bills is not, 
however, always just. There are enterprises so 
national in their character and effect that people 
remote from them geographically are still very 



"A MORE PERFECT UNION" 149 

beneficially affected. Such I conceive to be a 
comprehensive plan for keeping the Mississippi 
within its banks, to be contributed to by the States 
but to be executed under Federal authority. 

In the reclamation law for the irrigation of 
arid public lands in Western States, the money 
expended was to be expended from a fund to be 
made up of the proceeds of sales of public lands 
in those States, and from the water rents and 
assessments upon the irrigated lands. Thus the 
burden on the general Government was localized 
and confined to government lands in the States 
benefited. These proceeds have been anticipated 
by issuing $20,000,000 bonds, but as they are to 
be paid out of funds raised as above described, the 
fairness of the reclamation plan can hardly be 
questioned. 

Other expenditures now proposed can not be 
so justified, however. There is now being agitated 
and advocated a plan to build good roads in all 
the States of the United States, the fund for the 
purpose to be contributed to by the general Gov- 
ernment and the States. Under the plan, the State 
of New York would receive from the fund just 
about one-half the smn to be awarded to Nevada, 
while New York's contribution would be many 
times that of Nevada. This is unjust and is 
dangerous. While there is probably no doubt of 



150 POPULAR GOVERNMENT 

the power of the National Government to build 
wagon roads from one State to another, roads of 
this character are so much a matter of local con- 
cern, and the interstate traffic is so largely taken 
care of by railroads and river and sea navigation, 
that I believe it to be most unwise for the general 
Government to indulge in road building. The 
States should do it. The older States have al- 
ready taken up the work and the rest should 
follow them. The evils of "pork barrel" bills in 
rivers and harbors appropriations, and in public 
buildings bills will seem small and inconsiderable 
in the mad chase for a share in the good roads 
bills which the imaginations of many Congressmen 
have already made into law. 

The same proposal is being made in respect to 
the draining of the swamp lands of the various 
States. Most of these lands were given by the 
central Government to the States and much profit 
has been made out of them. If what remain unsold 
are to be drained, let the States do it, who own 
them; or let them reconvey them to the United 
States Government which may then drain them 
as a profitable investment in improving its own 
property if it is found to be such. 

It is to be remembered that in the expenditure 
of the people's money in the United States Treas- 
ury, Congress is a law unto itself in that it exer- 



"A MORE PERFECT UNION" 151 

cises complete discretion to say what is a proper 
national purpose. Such a question can never 
come before the Supreme Court. This is very 
different from the exercise of Congress of the 
power of taxation. That affects individual right 
directly. Any complaining tax-payer may, there- 
fore, at once invoke the judgment of the courts on 
the validity of a tax law. The distinction gives 
additional importance to public scrutiny of the 
purposes to which the Nation's funds are applied. 

In the pursuit of home popularity by Congres- 
sional representatives by securing national appro- 
priations for local purposes, and in the effort to 
avoid legitimate State expenditure by loading 
undue burdens on the general Government, there is 
danger that the States will lose their dignity and 
power. Such dangerous proposals, however, find 
much support in the present temper of pseudo- 
reformers and demagogues who would rejoice in 
any governmental effort, however unfair, to take 
from those who have, and give to those who have 
not. 

It is essential, therefore, in the life of our dual 
government that the power and functions of the 
State governments be maintained in all the fulness 
that they were intended to have by the framers of 
the Constitution. This is true not only for reasons 
I have given, but because the tendency to enlarge 



152 POPULAR GOVERNMENT 

the constitutional authority and duties of the 
National Government has gone far beyond the 
mere expenditure of money. 

A school has arisen called the New Nationalist 
School that proposes to put into operation a great 
many new remedies through the National Govern- 
ment, basing the national authority on the failure 
or unfitness of the States to discharge their proper 
and exclusive duties under the Constitution. This 
school is one which is closely associated with that 
which is trying to enforce new doctrines as to the 
direct rule of the people and an unsettling of the 
security of individual rights. Its members are 
generally impatient with the suggestion that cer- 
tain reforms can only be effected through the 
State governments. They are in favor of na- 
tional "hair trigger" legislation, and anything 
that has to depend upon the action of the forty- 
eight different States can never be of that kind. 

To one opposed to the adoption of such reme- 
dies as I have been commenting on, the existence 
of the State governments is one of the chief 
grounds for hope that the tendency to error in the 
weakening of constitutional guaranties that is 
now going on in some States may be halted by the 
conservatism of other States, and that the errors 
from actual experience in departing from repre- 
sentative government in the more radical States 



"A MORE PERFECT UNION" 153 

will ultimately bring back the whole nation to 
sounder views. 

I favor the principle of a graduated income tax. 
I urged the sixteenth amendment upon Congress in 
order to add to the nation's tax resources. But 
the present law was avowedly passed only to 
reduce the fortunes of the rich. It will not do so 
materially. There is a power in the State govern- 
ments of reducing or dividing these fortunes in a 
practical way. Each State has complete control 
over the testamentary privilege given to any owner 
of property and may take away the power of leav- 
ing it all to one child or require that it be left in 
some other way, and this without the violation of 
any of the guaranties of the Constitution. Now, 
if this be true, why has it not been proposed in 
some State? First, because the "hair trigger" 
reformer desires to reform the entire country at 
once and wishes to seem to do it in a way to attract 
attention and support a national party. Second, 
because no State, however bitter against its own 
rich men, would wish to deprive itself of their 
residence and of their tax-producing quality by 
passing a law which would drive them into some 
other State where the devolution of property is 
more in accordance with previous tradition and 
custom. Therefore, while this power to reduce the 
possibility of the accumulation of great fortunes 



154 POPULAR GOVERNMENT 

and their maintenance through two or three gen- 
erations is completely within the action of the 
States, not a single State has attempted it. 

The experience of Kansas and some of the other 
States, where populism ran riot for a time, is 
instructive. Then everyone was against the 
creditor and in favor of the debtor and wished 
to put obstacles in the path of the former in seek- 
ing to recover his money when due. To gratify 
the popular demand, the legislature passed stay 
laws which introduce many delays in the legal 
procedure of the State for the collection of mort- 
gages. The people of Kansas learned a lesson 
from the result of such legislation that has not 
yet been forgotten. Capital fled the State of 
Kansas as men flee from a contagious disease and 
business became as dead in Kansas as if it had no 
population at all. The blight that followed 
taught the statesmen of that State the utilitarian 
doctrine that honesty is the best policy, and that 
laws that drove creditors from a State and 
frightened away all capital, helped neither those 
who owed money nor those who did not owe money 
in the State. These so-called remedial laws were 
very soon repealed and since then other States 
have not made exactly the same mistake, though 
there are similar lessons in store for many of 
them. 



"A MORE PERFECT UNION" 155 

There is a great advantage in having different 
State governments try different experiments in 
the enactment of laws and in governmental 
policies, so that a State less prone to accept novel 
and untried remedies may await their develop- 
ment by States more enterprising and more 
courageous. The end is that the diversity of 
opinion in State governments enforces a wise 
deliberation and creates a locus poenitentm which 
may constitute the salvation of the Republic. 



vn 

"To Establish Justice" 

The next reason for ordaining the Constitution 
as stated in the preamble was "to establish jus- 
tice." There were courts in each State exercising 
general jurisdiction under its authority. The 
establishment of justice referred to in the pream- 
ble was the creation of courts under the authority 
of the new National Government to hear causes 
that involved its laws, and also to supplement the 
work of the courts of the various States by pro- 
viding tribunals for ordinary litigation which 
should be indifferent as between citizens of differ- 
ent States. The Constitution could not properly 
remit to State tribunals the exercise of all judi- 
cial power. Such an arrangement would make 
the new government lack dignity and the usual 
functions of a sovereign, and more than that, 
there would be no final and supreme tribunal to 
settle questions of Federal law where the Supreme 
Courts of the State might differ. 

The Constitution provides that there shall be 
one Supreme Court, and such inferior courts as 
Congress may from time to time ordain and estab- 



"TO ESTABLISH JUSTICE" 157 

lish. It also defines what the judicial power of 
the United States is or may extend to, thus giving 
the Kmitations of the jurisdiction that Congress 
may confer upon courts it creates. Under the 
Constitution, except in suits between States and in 
suits by Ambassadors, the Supreme Court can not 
hear suits as brought, but has jurisdiction only to 
review the decisions of other courts. 

While the Constitution provided for one Su- 
preme Court, it did not limit the number of 
Judges. It was, therefore, for Congress to pro- 
vide what number of Supreme Court Judges there 
might be. This very important power Congress 
has, at times, threatened with partisan zeal to 
abuse. It has been once or twice proposed to 
change the supposed political complexion of the 
Court by creating additional judgeships. Every 
patriot sincerely hopes that Congress may never 
be moved to adopt such a course. The number of 
Judges originally was seven. It was then reduced 
to five. The number has been changed from time 
to time, and now the number is nine. 

The original judiciary act was drafted by 
Oliver Ellsworth. He was a member of the Con- 
stitutional Convention and of the United States 
Senate from Connecticut. Upon the committee 
with him were three or four other members of the 
Constitutional Convention, from which it is to be 



158 POPULAR GOVERNMENT 

inferred that the act properly carried out the 
purposes of that framing body. Mr. Ellsworth 
subsequently became Chief Justice of the United 
States, but his greatest public service for which 
he is chiefly remembered was his judiciary act. 
While the judiciary act has been amended from 
time to time, it still retains much of its original 
language and form. It established, as inferior 
courts, in each of the circuits, now numbering nine, 
a district court and a circuit court and defined 
their jurisdictions, and provided for the appellate 
jurisdiction of the Supreme Court. In 1892, an 
intermediate appellate court, called the Circuit 
Court of Appeals, was created in each circuit. In 
1911, the jurisdiction of the circuit courts was 
transferred to the district courts and the circuit 
courts were abolished. 

The Constitution makes the tenure of office of a 
judge during good behavior, which means during 
his life, provided he be not impeached. It provides 
that his compensation shall never be diminished 
during his term of office, and in this way he is 
made as independent as possible of the legislative 
or executive power after he has once been ap- 
pointed and confirmed by the Senate. I shall 
comment on the beneficial effect of these provi- 
sions in a later chapter. 

Congress has passed a law providing that all 



"TO ESTABLISH JUSTICE" 159 

Federal Judges may retire after a service of ten 
years upon attaining the age of seventy. The law 
is in form not compulsory because I presume it 
was thought doubtful whether Congress had any 
power to retire Judges, even though they continue 
the full salary as a life pension. I think the 
absence of power in Congress to do this is a defect. 
There is no doubt that there are Judges at seventy 
who have ripe judgments, active minds, and much 
physical vigor, and that they are able to perform 
their judicial duties in a very satisfactory way. 
Yet in a majority of cases when men come to be 
seventy, they have lost vigor, their minds are not 
as active, their senses not as acute, and their 
willingness to undertake great labor is not so 
great as in younger men, and as we ought to have 
in Judges who are to perform the enormous task 
which falls to the lot of Supreme Court Justices. 
In the public interest, therefore, it is better that 
we lose the services of the exceptions who are good 
Judges after they are seventy and avoid the pres- 
ence on the Bench of men who are not able to keep 
up with the work, or to perform it satisfactorily. 
The duty of a Supreme Judge is more than merely 
taking in the point at issue between the parties, 
and deciding it. It frequently involves a heavy 
task in reading records and writing opinions. It 
thus is a substantial drain upon one's energy. 



160 POPULAR GOVERNMENT 

When most men reach seventy, they are loath 
thoroughly to investigate cases where such work 
involves real physical endurance. 

I don't know that there is any method, except 
by a change of the Constitution, for remedying 
the defect that I have suggested. It has some- 
times been proposed that, as the retirement pension 
is optional with Congress, it be granted on condi- 
tion that the Judge retires at seventy, and if he 
does not then retire, but delays his retirement until 
after he has become somewhat older, he shall not 
have the privilege of retirement on a pension. 
This it is thought would frighten Judges into an 
acceptance of the Congressional pension at the 
right age. I doubt if anything could be accom- 
plished by such legislation. 

I would certainly not agitate now the question 
of amending the Constitution in respect to the 
tenure of the Federal Judges, because it would be 
dangerous in the present hysterical condition of 
many people, and a movement would at once be 
set on foot not only to retire Judges at seventy, 
but to make them elective and to give them short 
terms. Hence, for the present, we can afford to 
continue to leave the matter to the good sense of 
the Judges themselves. I ought to add, however, 
that the experience of men, close to the Court, in 
respect to the willingness of the Judges to retire 



"TO ESTABLISH JUSTICE" l6l 

after they have become seventy, has not been very 
different from that of Gil Bias with the Bishop. 

I shall not read at length the article defining the 
judicial power. It is sufficient to say for our 
purposes that it extends to all cases involving the 
construction of the Constitution of the United 
States and the statutes and treaties of the United 
States, in other words, to the enforcement of 
Federal law as distinguished from State law ; and, 
secondly, that it includes the consideration of all 
kinds of litigation between citizens of different 
States. 

It is difficult for us who have been bom and 
brought up in an atmosphere of the Federal and 
State courts to reahze how compHcated and almost 
unintelligible our judicial system is to foreigners. 
They find it difficult to understand dual govern- 
mental authority in which, over the same terri- 
tory, courts may exercise the same kind of juris- 
diction concurrently, and yet act under different 
sovereignties. I have already stated the reasons 
for the establishment of a Federal judicial system. 
I need not further refer to the necessity for a 
national tribunal to settle finally national ques- 
tions. The other reason requires a little further 
comment. Those who framed and adopted the 
Constitution feared that the citizen of one State 
seeking to assert his rights in another State be- 



162 POPULAR GOVERNMENT 

fore the courts of that other State, might find 
himself prejudicially affected by the local feeling 
in favor of a resident and against a non-resi- 
dent, — in favor of a citizen against a non-citizen. 
It was, therefore, given to Congress to establish 
inferior courts in every State so that in each 
State a citizen of another State might have his 
cause heard before a tribunal whose Judge, bear- 
ing the commission of the President of the nation 
and exercising the authority of the National Gov- 
ernment, would be presumed to be free from any 
local feeling and to administer justice with entire 
impartiality between litigants, whatever their resi- 
dence or citizenship. The effectiveness of this 
provision and its wisdom have been fully vindi- 
cated by 125 years of actual experience. 

The greatest function of the Federal Courts, 
and especially of the Supreme Court, is the power 
to declare void the laws either of Congress or of 
the legislatures of the States which are found to 
conflict with the provisions of the Constitution. 

In England there had been some intimation by 
Lord Chief Justice Holt and by Lord Chief Jus- 
tice Coke that Courts had the right to disregard 
acts of ParHament. Coke said that the common 
law controlled acts of Parliament and adjudged 
them void when against common right and reason, 
and Holt adopted this dictum of Coke which he 



"TO ESTABLISH JUSTICE" 163 

found to be supported by Lord Chief Justice 
Hobart, who, in a reported case, insisted that an 
act of Parliament made against natural equity 
so as to make a man judge in his own cause was 
void. But England is without a written consti- 
tution, and the generally accepted rule in English 
law is that Parhament is omnipotent and that the 
acts of Parliament must be enforced by the Courts 
and are beyond any criticism on their part or any 
power of theirs to declare the acts void. 

In the United States, however, we have a writ- 
ten Constitution. It declares the fundamental 
law and it imposes limitations upon the powers of 
all branches of the Government. Now if any 
branch of the Government exceeds those powers to 
which it is thus limited, the act is without author- 
ity and must be void. The question is who is to 
determine whether the act does exceed the author- 
ity given. The action of the Supreme Court is 
confined to the hearing and decision of real liti- 
gated cases and the exercise of judicial power 
between parties. It is essential to the carrying 
out of this jurisdiction that the court should 
determine what the law is governing the issue 
between the litigants. Therefore, when a statute 
is relied upon by one party, and it is claimed by 
the other that the statute can have no effect be- 
cause in violation of the fundamental law, the 



164 POPULAR GOVERNMENT 

Court must decide whether the statute was within 
the power of the legislature which passed it or not. 
That process of reasoning is the one pursued by 
Chief Justice Marshall in the case of Marbury 
vs. Madison. The reasoning has been accepted as 
sound in practice for 125 years and courts have 
exercised this authority, both the Supreme Court 
of the United States and the Supreme Court of 
States, for all that time. 

The other theory is that it is for the branch of 
the Government exercising authority to determine 
whether it is acting within its authority or not, 
that its judgment on the subject is conclusive, and 
that any other branch of the Government having 
to investigate the validity of its act must accept 
the fact of its action as proof of its vahdity. 

Experience has shown that the obligation to 
keep within the Constitution sits very lightly upon 
State legislatures and it is not always regarded 
by Congress. The people are temporarily moved 
to demand something which the Constitution for- 
bids. It is argued with some force that if there 
were no method of resorting to the Courts to de- 
clare the invalidity of laws, the members of Con- 
gress or of the legislatures would be as careful to 
follow closely the limitations of their power as 
the British Parliament has been to follow the un- 
written constitution of that country. The 



"TO ESTABLISH JUSTICE" 165 

assumption that the Courts are the real arbiters 
as to the issue of the vaHdity of a legislative act, 
it is said, lifts the responsibility from legislators 
and they, therefore, vote for the measures they 
favor without regard to constitutional restriction. 
I concede the force of this argument to the extent 
of admitting that both legislatures and Congress 
are not as sensitive to their constitutional obhga- 
tions as they ought to be, and they are quite will- 
ing to shift the burden of defeating popular meas- 
ures to the judicial tribunals. But we can not 
safely assume that if the decision of the legisla- 
tures or Congress were final as to validity of 
laws, and there could be no resort to the Courts, 
temporary but powerful pressure in favor of 
infringements of the Constitution contained in 
legislation pleasing to the constituencies would 
not prevail. 

To contend that the Courts have no power 
whatever to consider the validity of laws passed 
by a legislature or Congress under a written Con- 
stitution is much too extreme a doctrine. We may 
admit that some courts have gone too far in the 
exercise of this power. They ought not to exer- 
cise it, except when the conflict between the Con- 
stitution and the act whose validity is in question 
are irreconcilable. The violation of the constitu- 
tional hmitation must be plainly beyond the 



166 POPULAR GOVERNMENT 

permissible discretion of the legislature in inter- 
preting its own powers under the Constitution. 
Courts ought not to set aside a law when there is 
room for difference of opinion as to its validity, 
and though the Court, in passing on the matter 
as an original question, might think it crosses the 
line, it must accept the view of the legislature as 
most persuasive of the view that what it has done 
is within the permissive Hmits of its discretion. In 
other words, the invaHdity of a law solemnly 
adopted by the legislature given authority to 
enact laws should not be declared, unless the want 
of power appears to be beyond reasonable doubt. 

The modem argument against the action of the 
Courts in holding laws to be invalid is that it gives 
to them a political and legislative power and 
deprives the people of that which should be theirs. 
One enthusiast in the crusade against the Courts 
has pointed out that 458 acts of legislatures had 
been declared invalid by the State and Federal 
Courts during a recent year, and has concluded 
that the Courts are thus exercising enormous poli- 
tical and legislative power. He insists that such 
power ought to rest with the people and, there- 
fore, that such decisions of the courts should be 
referred to the electorate at the next election. 

An argument like this does not appeal to any 
one who understands the facts. The general run 



"TO ESTABLISH JUSTICE" 167 

of cases presenting the issue of validity or non- 
validity, under a fundamental law, does not 
involve politics at all or anything like legislative 
discretion. It involves only a lawyer-like con- 
struction of the Constitution and the law in ques- 
tion to decide whether they are in conflict. I 
doubt not that of the 458 cases, nearly all were 
cases of palpable violation of the fundamental law 
which it was a purely non-poHtical, judicial func- 
tion for the Courts to recognize and declare. In 
the remainder, there may have been questions 
which were economical or poHtical in the larger 
sense. I mean by this, political in the general view 
of the powers of the National Government and not 
political in the sense of partisan politics of a tem- 
porary color. They may have involved the extent 
of the poKce power of government and its proper 
curtailment of individual rights. 

If, in the latter very small class of cases, the 
people differ from the construction put by the 
Courts upon such a question, they still have the 
authority to amend the Constitution and make it 
so plain that no court can ignore it. 

Checks upon the action of the people in amend- 
ing their constitutions have been imposed with a 
view to secure full information and deliberation on 
the part of the people, and certainly both those 
things are essential to a safe amendment of the 



168 POPULAR GOVERNMENT 

fundamental law. It only means delay in a radi- 
cal change and when we consider how short a 
period a decade is in the life of a nation, a delay 
of two or three years is not only tolerable but 
ought to be necessary. I shall consider the gen- 
eral attack on so-called judge-made law later on 
in this volume. 

I now come to consider two new remedies for 
supposed evils growing out of our judicial system, 
State and national. I refer to the popular recall 
of judicial officers and the popular recall of judi- 
cial decisions. I shall discuss these in their order. 

The popular recall of judges has been put into 
effect in several States and it was made part of the 
constitution of Arizona tendered for approval, 
when her people in convention asked for admission 
to statehood. I vetoed the bill admitting her on 
the ground that the proposed constitution con- 
tained this pro^dsion. Congress then made the 
admission conditional on the people's striking out 
this clause of the constitution and the people did 
so. Promptly upon admission, however, the clause 
was restored to their constitution by the people of 
the State. I do not think I can better state my 
views on this subject than by an extended quota- 
tion from my message to Congress vetoing the 
Arizona bill, in which I said : 



"TO ESTABLISH JUSTICE" l69 

"The Constitution distributes the functions of 
government into three branches — the legislative, 
to make the laws ; the executive, to execute them ; 
and the judicial, to decide in cases arising before 
it the rights of the individual as between him and 
others and as between him and the government. 
This division of government into three separate 
branches has always been regarded as a great 
security for the maintenance of free institutions, 
and the security is only firm and assured when the 
judicial branch is independent and impartial. 
The executive and legislative branches are repre- 
sentative of the majority of the people which 
elected them in guiding the course of the govern- 
ment within the limits of the Constitution. They 
must act for the whole people, of course ; but they 
may properly follow, and usually ought to follow, 
the views of the majority which elected them in 
respect to the governmental policy best adapted 
to secure the welfare of the whole people. 

"But the judicial branch of the government is 
not representative of a majority of the people in 
any such sense, even if the mode of selecting 
judges is by popular election. In a proper sense, 
judges are servants of the people; that is, they 
are doing work which must be done for the govern- 
ment, and in the interest of all the people, but it 
is not work in the doing of which they are to 



170 POPULAR GOVERNMENT 

follow the will of the majority, except as that is 
embodied in statutes lawfully enacted according to 
constitutional limitations. They are not popular 
representatives. On the contrary, to fill their 
office properly, they must be independent. They 
must decide every question which comes before 
them according to law and justice. If this ques- 
tion is between individuals, they will follow the 
statute, or the unwritten law, if no statute applies, 
and they take the unwritten law growing out of 
tradition and custom from previous judicial deci- 
sions. If a statute or ordinance affecting a cause 
before them is not lawfully enacted, because it 
violates the Constitution adopted by the people, 
then they must ignore the seeming statute and 
decide the question as if the statute had never been 
passed. 

''What I have said has been to little purpose if 
it has not shown that judges to fulfill their func- 
tions properly in our popular government must 
be more independent than in any other form of 
government, and that need of independence is 
greatest where the individual is one litigant, and 
the State, guided by the successful and governing 
majority, is the other. In order to maintain the 
rights of the minority and the individual and to 
preserve our constitutional balance we must have 



"TO ESTABLISH JUSTICE" 171 

judges with courage to decide against the major- 
ity when justice and law require. 

"By the recall in the Arizona Constitution, it 
is proposed to give to the majority power to 
remove arbitrarily and without delay any judge 
who may have the courage to render an unpopular 
decision. By the recall it is proposed to enable a 
minority of 25 per cent of the voters of the dis- 
trict or State, for no prescribed cause, after the 
judge has been in office six months, to submit the 
question of his retention in office to the electorate. 
The petitioning minority must say in their peti- 
tion what they can against him in 200 words, and 
he must defend as best he can in the same space. 
Other candidates are permitted to present them- 
selves and have their names printed on the ballot, 
so that the recall is not based solely on the record 
or the acts of the judge, but also on the question 
whether some other and more popular candidate 
has been found to unseat him. Could there be a 
system more ingeniously devised to subject judges 
to momentary gusts of popular passion than this ? 

"We can not be blind to the fact that often an 
intelligent and respectable electorate may be so 
roused upon an issue that it will visit with con- 
demnation the decision of a just judge, though 
exactly in accord with the law governing the case, 
merely because it affects unfavorably their con- 



172 POPULAR GOVERNMENT 

test. Controversies over elections, labor troubles, 
racial or religious issues, issues as to the construc- 
tion or constitutionality of liquor laws, criminal 
trials of popular or unpopular defendants, the 
removal of county seats, suits by individuals to 
maintain their constitutional rights in obstruction 
of some popular improvement — these and many 
other cases could be cited in which a maj ority of a 
district electorate would be tempted by hasty 
anger to recall a conscientious judge if the oppor- 
tunity were open all the time. 

"No period of delay is interposed for the abate- 
ment of popular feeling. The recall is devised to 
encourage quick action, and to lead the people to 
strike while the iron is hot. The judge is treated 
as the instrument and servant of a majority of the 
people and subject to their momentary will. Not 
after a long term in which his quahties as judge 
and his character as a man have been subjected to 
a test of all the varieties of judicial work and duty 
so as to furnish a proper means of measuring his 
fitness for continuance in another term, but on the 
instant of an unpopular ruling, while the spirit of 
protest has not had time to cool and even while an 
appeal may be pending from his ruling in which 
he may be sustained, he is to be haled before the 
electorate as a tribunal, with no judicial hearing, 
evidence or defence, and thrown out of office and 



"TO ESTABLISH JUSTICE" 173 

disgraced for life because he has failed, in a single 
decision, it may be, to satisfy the popular demand. 
"Attempt is made to defend the principle of 
judicial recall by reference to States in which 
judges are said to have shown themselves to be 
under corrupt corporate influence, and in which it 
is claimed that nothing but a desperate remedy 
will suffice. If the pohtical control in such States 
is sufficiently wrested from corrupting corpora- 
tions to permit the enactment of a radical Consti- 
tutional amendment, like that of judicial recall, it 
would seem possible to make provision, in its stead, 
for an effective remedy by impeachment in which 
the cumbrous features of the present remedy 
might be avoided, but the opportunity for judicial 
hearing and defence before an impartial tribunal 
might be retained. Real reforms are not to be 
effected by patent short cuts, or by abohshing 
those requirements which the experience of ages 
has shown to be essential in dealing justly with 
every one. Such innovations are certain in the 
long run to plague the inventor or first user, and 
will come readily to the hand of the enemies and 
corrupters of society after the passing of the just 
popular indignation that prompted their adop- 
tion. 

"Again judicial recall is advocated on the 
ground that it will bring the judges more into 



174 POPULAR GOVERNMENT 

sympathy with the popular will and the progress 
of ideas among the people. It is said that now 
judges are out of touch with movements toward a 
wider democracy, and a greater control of govern- 
mental agencies in the interest and for the benefit 
of the people. The righteous and just course for 
a judge to pursue is ordinarily fixed by statute or 
clear principles of law, and the cases in which his 
judgment may be affected by his political, eco- 
nomic, or social views are infrequent. But even in 
such cases, judges are not removed from the 
people's influence. Surround the judiciary with 
all the safeguards possible, create judges by 
appointment, make their tenure for life, forbid 
diminution of salary during their term, and still 
it is impossible to prevent the influence of popular 
opinion from coloring judgments in the long run. 
Judges are men, intelligent, sympathetic men, 
patriotic men, and in these fields of the law in 
which the personal equation unavoidably plays a 
part, there will be found a response to sober 
popular opinion as it changes to meet the exigency 
of social, political and economic changes." 

Recall of Judicial Decisions 

The proposition for a recall of judicial decisions 
by a popular vote is so utterly at variance with 
any procedure that ever was suggested in respect 



"TO ESTABLISH JUSTICE" 175 

to civilized government that it is hard to deal with 
it. It had its origin in the impatience felt by some 
reformers in the economic views of judges who 
held that a law imposing limitations upon the 
hours of work of people engaged in certain indus- 
tries was an infringement upon their individual 
right of free labor. The reformers contend that 
the law should be sustained as a legitimate exercise 
of the police power of the Government. The sug- 
gestion that such a question should be ultimately 
left to a popular election is now sought to be 
bolstered up by a phrase in an opinion of Mr. 
Justice Holmes, in Noble State Bank vs. Haskell, 
219 U. S., 104, in which he says : "It may be said 
in a general way that the police power extends 
to all the great public needs. ... It may be put 
forth in aid of what is sanctioned by usage or 
held by the prevailing morality or strong and 
preponderant opinion to be greatly and imme- 
diately necessary to the public welfare." Again 
he says: "With regard to the police power, as 
elsewhere in the law, lines are pricked out by the 
gradual approach and contact of decisions on the 
opposing sides." I fancy that Mr. Justice 
Holmes was the most surprised man in the United 
States when he learned that this language of his 
had been used to justify the anomalous, I had 
almost said absurd, proposal that the decision of 



176 POPULAR GOVERNMENT 

the Supreme Court of a State or of the United 
States, in a case between Htigants involving the 
question of the vaHdity of the exercise of the 
police power, should be submitted by referendum 
to the reviewing judgment of a single popular 
election. 

This was the last thing which Mr. Justice 
Holmes or the Supreme Court, for whom he spoke, 
had in mind when he referred to a strong and pre- 
ponderant public opinion. Such an election 
would indeed be a most ephemeral and unstable 
guide to determine how far a man's personal 
rights were to be modified in the interest of the 
public police power. If we can judge by actual 
experience under referendums of this general 
character, the election, if carried at all in favor 
of the police power, would be carried by a small 
minority of the electorate in the very probable 
failure of a majority of the electorate to go to 
the polls, and by a still smaller minority of the 
whole people whose settled view constitutes public 
opinion. It would be influenced by all kinds of 
irrelevant considerations and by campaign mis- 
representations as to the facts and the real issue. 
Every circumstance, whether the unpopularity of 
a party litigant or the supposed pecuniary bene- 
fit to the people of the particular locality, or any 
other upon which an appeal to prejudice or selfish 



*TO ESTABLISH JUSTICE" 177 

interest could be based, would be used to influence 
the election. It is difficult to state a fact less 
conclusive of "a strong and preponderant public 
opinion" than a single vote upon such an issue. 
What was in the mind of the learned Justice and 
of the Court for whom he spoke was a view enter- 
tained by most people, and evidenced by expres- 
sions of popular will in the press, in the pulpit, in 
juridical writings, as well as by legislative action 
and popular elections. All of these evidences 
should cover a period long enough to leave no 
doubt about the clarity of the opinion or its delib- 
erate character. Such an opinion is not ex- 
pressed in election controversy where the losing 
vote is substantial, but it is the result of a general 
and continued acquiescence that does not suggest 
a party division or a heated campaign. 

The main argument used to sustain the recall 
of judicial decisions is that if the people are com- 
petent to establish a constitution, they are compe- 
tent to interpret it and that this recall of decisions 
is nothing but the exercise of the power of inter- 
pretation. The fallacy of this argument should 
be manifest. The approval of general principles 
in a constitution, on the one hand, and the inter- 
pretation of a statute and consideration of its 
probable operation in a particular case and its 
possible infringement of a general principle, on 



178 POPULAR GOVERNMENT 

the other, are very diflPerent things. The one is 
simple, the latter complex; and the latter, when 
submitted to a popular vote, is much more likely 
to be turned into an issue of general approval or 
disapproval of the act on its merits for the special 
purpose of its enactment and in its appHcation to 
the particular case than upon its violation of the 
Constitution. Moreover, a popular majority does 
not generally ratify a constitution, or any prin- 
ciple of it, or amend its terms until after it has 
been adopted by a constitutional convention or a 
legislature, and the final approval is, and ought to 
be, surrounded with such checks and delays as to 
secure full information and deliberation. In other 
words, the course of procedure in the adoption of 
a constitution or amendment is radically different 
from that proposed in the hasty vote of a major- 
ity in recalling a particular judgment of a Court 
and is hedged about to avoid the very dangers 
that I have pointed out as likely to ensue were this 
inconceivable and outlandish plan incorporated in 
our judicial system. 

The proper and reasonable method of avoiding 
the effect of a decision of the Supreme Court con- 
struing the Constitution, which the considerate 
judgment of the people holds to be contrary to 
the public good, is to treat the Constitution as 
construed in existing force, and to amend the 



"TO ESTABLISH JUSTICE" 179 

Constitution according to the provisions of the 
Constitution itself. That involves an ultimate 
submission to the people after full discussion and 
deliberation. Why is it necessary, therefore, to 
suggest such a clumsy, unsatisfactory and imprac- 
ticable method? 

How could uniformity of fundamental or any 
other kind of law be possible under such a system? 
No one would claim that uniformity would be the 
result from successive elections held in different 
years. Instead of a constitution, consistent in its 
construction and uniform in its application, it 
would be a government by special instances, a 
government that in the end necessarily leads to 
despotism. 

When this remarkable device of recalling judi- 
cial decisions was first advanced, it was carefully 
hmited in its application to the decisions of State 
Courts and to issues concerning the extent of the 
police power, but so well received have been the 
demagogic attacks upon our Courts made upon 
the political platform that now this novel invention 
has been extended to include the judgments of the 
Supreme Court of the United States and to 
embrace all of those which hold laws to be invalid 
because in violation of the Constitution. 

Many of these judgments concern and enforce 
the guaranties of personal rights contained in the 



180 POPULAR GOVERNMENT 

Constitution and nullify statutes which infringe 
them. It follows that many of the decisions to be 
submitted under this plan to the learned and dis- 
criminating judicial judgment of a majority of 
the voters who take the trouble to vote, would 
present the issue as between the people in whose 
avowed interest the law in question was passed and 
the individual whose property rights are said to be 
unjustly affected by the law. On such an issue, 
with the opportunities for demagogic appeals to 
popular prejudice against the defendant who 
might be a corporation or a rich man, and in the 
confusion of an excited campaign, is there not 
great danger that individual property right 
would be ignored and the law in question which 
infringed it would be sustained? To what would 
this all necessarily lead? To confiscation and 
then to socialism. Indeed it is difficult to tell 
whether the recall of judicial decisions is not as 
socialistic as it is anarchistic. 

In the first chapter I commented on the fact 
that popular government was only a means to an 
end, to wit, that of the happiness of all classes and 
individuals, that this end could best be reached by 
the rule of a majority of a large representative 
electorate restrained by a constitution, defining 
the authority of the branches of the Govern- 
ment and restricting the invasion by the electorate 



''TO ESTABLISH JUSTICE" 181 

of certain declared individual rights necessary to 
preserve and protect individual effort, with a view 
to the progress and happiness of society and 
its members. We have seen that to enforce and 
secure these constitutional rights an independent 
judiciary was established as an instrument 
through which, on his own initiative, each indi- 
vidual could invoke adequate protection to his 
rights. This method of uniting popular control 
with self-imposed restraint through a constitu- 
tion and an independent judiciary to enforce it, is 
the secret of the strength of our nation, and it 
explains why we have lived and grown stronger 
under the same Constitution in the face of all 
kinds of obstacles, including the greatest civil war 
in history, and the difficulties of a material expan- 
sion and growth of population beyond the dreams 
of the most imaginative statesman. This is what 
called forth the encomium of Lord Acton, the 
great historian, in the memorable sentences I 
quoted from him. 

Now what do we have in the initiative, referen- 
dum and the two recalls urged by a school of men 
who profess to be friends of popular government 
and most concerned to promote the people's happi- 
ness? We have a system by which it is proposed 
not only to weaken and render nugatory the 
declared guaranties of personal rights and the 



182 POPULAR GOVERNMENT 

constitutional restraints upon the electorate and 
its majority, but also to take away the power and 
independence of that branch of the Government, 
the judiciary, without which such guaranties and 
restraints would be written in water. It is not 
alone the popular control of laws and executive 
action that gives a Democracy strength and long 
Hfe. It is its capacity to do justice to the indi- 
vidual and the minority. Lack of this is what 
destroyed ancient democracies. What preserves 
ours are those self-imposed popular restraints and 
practical means for enforcing them that keep the 
course of the majority of the controlhng elector- 
ate just to all and each of the people. 

There are real grounds for criticising our 
judicial system as a whole which the politicians 
and demagogues do not find so profitable to dwell 
upon, or to suggest remedies for. I concede that 
our judicial system is not perfect or as good as it 
can be, and ought to be made. I have been preach- 
ing reform in our judicial procedure for years, 
especially in the enforcement of the criminal law. 
In addresses and in presidential messages I havie 
pointed out the great need for cheapening the cost 
of civil litigation and for expediting it so as to put 
as little a burden on the poor litis^ant as possible. 

The ultra reformers, the "hair trigger" gentle- 
men, pay little attention to the tedious detail of 



"TO ESTABLISH JUSTICE" 183 

reforming procedure so as to reduce the cost of 
litigation and to speed final judgments. This is 
really one of the greatest reforms now needed; 
and it will do the poor man more good ten times 
than the shining nostrums held out to him as a 
ground for electing their inventors. But the 
work of amending procedure and cutting down 
cost bills and of cutting out useless forms and 
delays in the law is not spectacular. It does not 
attract votes. Still the much- abused lawyers have 
through their Bar Associations made many useful 
recommendations of changes in procedure and are 
knocking at the door of Congress and legislatures 
to secure their adoption. 

I do not think we need to be discouraged by the 
charges and threats made against our Courts, 
especially if we remedy their real defects by the 
reforms already pointed out. There have been 
many attacks upon. Courts in the past. Jefferson 
and Jackson were both most severe in their criti- 
cisms of the Federal Judiciary, and both were as 
popular and influential with the people as any 
Presidents we have had. And yet the Courts sur- 
vived their attacks and lived to maintain princi- 
ples which they both held to be abhorrent, and 
subversive of the liberties of the people. The 
Dred Scott decision, the legal tender cases, the 
income tax decision and the Insular cases, in aU 



184 POPULAR GOVERNMENT 

of which the judgment was carried by a bare 
majority, subjected the Court to the bitter attack 
of those who sympathized with the minority deci- 
sions, and in each period of agitation and conflict 
people shook their heads and said that the author- 
ity of the Supreme Court had been much shaken. 
Yet the tribunal has gone on its way discharging 
its high function in the Government with patriotic 
purpose to maintain its authority, and to preserve 
the constitutional rights of the individual and the 
form of government as prescribed by our fathers. 
The Court lives to-day, strong, virile, patriotic 
and able and willing to recognize progress, to 
treat the Constitution as elastic enough to permit 
a construction which will conform to the growth 
and necessities of the country, to view constitu- 
tional restrictions with reasonable regard to the 
changes which have taken place in our business 
and in our society, and yet determined to enforce 
the principles of individual right and the essential 
limitations upon the branches of the Government 
which are provided for in our fundamental law. 
The greatest advantage of our plan of govern- 
ment over every other is the character of the 
judicial power vested in the Supreme Court. The 
statesmen and historians of Europe look upon it 
with wonder and amazement, speak of it with 
profound approval, and regard it as the chief 



"TO ESTABLISH JUSTICE" 185 

instrument in the maintenance of that self- 
restraint which the people of the United States 
have placed upon themselves and which has made 
this Government the admiration of intelligent 
critics the world over. 



VIII 

"To Establish Justice" — (Continued) 
The Selection and Tenure of Judges 

The most conspicuous feature of the new gov- 
ernment under the Federal Constitution was its 
division into three parts — ^the legislative, the 
executive and the judicial. Experience has vin- 
dicated that division, except, it may be, that some 
lack of efficiency has shown itself in the absence 
of more useful co-operation between the executive 
and the legislative branches. The wisdom of 
keeping the executive and the legislative branches 
apart from the judiciary has, however, been con- 
firmed by the event, not only under the American 
Constitution, but in England and in all the states 
under her flag. In the United States, where judi- 
cial systems have different degrees of this quality, 
permitting comparison, the greater the inde- 
pendence of the Courts the stronger their 
influence, and the more satisfactory their juris- 
diction and administration of justice. 

In a popular government, the most difficult 
problem is to determine a satisfactory method of 



SELECTION OF JUDGES 187 

selecting the members of its judicial branch. 
Where ought such power to be placed? It is a 
great one. It is said it ought not to be entrusted 
to irresponsible men. If this means that judges 
should not be men who do not understand the 
importance of the function they are exercising, or 
the gravity of the results their decision may 
involve, or do not exert energy and sincere intel- 
lectual effort to decide according to law and 
justice, every one must concur. But if it means 
that judges must be responsible for their judg- 
ments to some higher authority, so that for errors 
made in good faith they incur a personal liability, 
then we know from centuries of actual experience 
that the interest of justice, pure and undefiled, 
requires their immunity. Finality of decision is 
essential in every branch of the Government, or 
else government cannot go on. This is as true of 
its judiciary branch as of other branches. There- 
fore, somebody must have the final word in judi- 
cial matters, and the only question is who can 
best exercise this power. The answer to the ques- 
tion must be found in the real character of the 
function which the judges are to perform. 

There is a school of political philosophers 
to-day who say that there are no positive stan- 
dards of right and justice, but that these vary 



188 POPULAR GOVERNMENT 

with the popular will, and that we are to learn 
what they are from its expression. 

If right and justice are dependent on the votes 
of the electorate, and if what are known as indi- 
vidual rights are merely privileges held at the 
will of a majority, then the proposition that the 
judicial officer represents the people in the same 
sense as the executive officer, so that when the 
electoral majority differs from his judgment he 
ought to be removed, has some logical foundation. 
So, too, in this view, the proposition that the final 
decision of the courts shall be submitted on review 
to a popular election has reason in it. 

But I shall assume, for the purposes of this 
discussion, that principles of right and justice 
and honesty and morality are not merely con- 
ventional and have a higher source than a 
plebiscite. 

There is a broad field for the proper exercise of 
legislative power in prescribing rules of human 
conduct, and it is the function of courts to inter- 
pret them. This is the work of trained lawyers 
who know the theory and purpose of government, 
who are familiar with previous statutes, and who 
understand legislative methods of expression so 
that they can put themselves in the attitude of the 
legislature when it acted. When it is the duty of 
a court to say whether what was enacted by the 



SELECTION OF JUDGES 189 

legislature under the forms of law is within its 
power, it must discharge a delicate duty and one 
requiring in its members ability, learning and 
experience properly to interpret both the seeming 
law and the Constitution, and properly to meas- 
ure what was within the permissible discretion of 
the legislature in construing its own authority. 
The majority of questions before our Courts, 
however, are neither statutory nor constitutional, 
but are dependent for decision upon the common 
or customary law handed down from one genera- 
tion to another, adjusted to new conditions of 
society, and declared from time to time by courts 
as cases arise. Thorough study is required to 
enable a judge to know and understand the whole 
range of legal principles that have thus to be 
discriminatingly adapted and applied. Work of 
this kind requires professional experts of the 
highest proficiency, who have mastered the law 
as a science and in practice. 

Where are we to get such experts? When a 
man of high character, ability and intelligence is 
to be selected for the chief executive office, the 
electorate can be safely charged with electing one 
from the necessarily few candidates who are suffi- 
ciently prominent. But what of the searching out 
in a large profession the best expert, the man with 
real learning, with judicial temperament, with 



190 POPULAR GOVERNMENT 

keenness of perception, with power of analysis 
and nice distinction, with large technical experi- 
ence? Can he be found better by election or by 
appointment? There can be but one answer to 
this query. The selection can be reaUy popular 
without resorting to an election. The Chief Exec- 
utive elected by the people to represent them in 
executive work does, in appointing a judge, exe- 
cute the popular will. He can search among the 
members of the Bar and can inform himself 
thoroughly as to the one best qualified. Generally 
he has sources of information, both of an open 
and a confidential character, and if he is not 
himself a lawyer or personally familiar with 
the quahfications of the candidates, he has an 
Attorney-General and other competent advisers 
to aid him in the task. 

For these reasons, in every country of the 
world, except in the Cantons of Switzerland and 
the United States, judges are appointed and not 
elected. With us, in the decade between 1845 and 
1855, when new constitutions were being adopted 
in many States, a change was made to the elective 
system. It was not an improvement. In some 
States the change was not made. A comparison 
between the work of the appointed judges and 
of the elected judges shows that appointment 
secures in the long run a higher average of 



SELECTION OF JUDGES 191 

experts for the Bench. The principle of the short 
ballot, which is much put forward nowadays by 
reformers, and which thus far is much more 
honored by them in the breach than in the observ- 
ance, really limits the election by the people to the 
Chief Executive and to legislators, and delegates 
to the elected Executive the appointment of all 
other officers, including the judiciary. The Execu- 
tive who makes the appointments is properly held 
responsible to the pubHc for the character of his 
selections. 

We have had many able judges by popular 
election. These have owed their preferment to 
several circumstances. The effect of the old 
method of appointment was visible in the working 
of the new system for a decade or more, and good 
judges were continued by general acquiescence. 
In some States, indeed, the practice of re-electing 
judges without contest obtained until within 
recent years. Moreover, able judges have been 
nominated often through the influence of leading 
members of the Bar upon the politicians who con- 
trolled the nominations. Shrewd political leaders 
have not infrequently treated a judgeship as a 
non-political place, because the office has had com- 
paratively little patronage. If the nominee has 
been a man of high quality, conspicuously fit, 
commanding the support of the professional and 



192 POPULAR GOVERNMENT 

intelligent non-partisan votes, it has tended to 
help the rest of the ticket to success. The 
instances of great and able judges who have been 
placed on the Bench by election are instances of 
the adaptability of the American people and their 
genius for making the best out of bad methods, 
and are not a vindication of the system. That 
has resulted in the promotion to the judicial office 
of other judges who have impaired the authority 
of the courts by their lack of strength, clearness 
and courage, and who have shown neither a 
thorough knowledge of the customary law, nor a 
constructive faculty in the application of it. 
Great judges and great courts distinguish be- 
tween the fundamental and the casual. They 
make the law to grow not by changing it, but by 
adapting it, with an understanding of the pro- 
gress in our civilization, to new social condition?. 
It is the judges who are not grounded in the 
science of the law, and who have not the broad 
statesmanlike \dew that comes from its wide study, 
that are staggered by narrow precedent and 
frightened by technical difficulty. The decisions 
of courts criticised for a failure to respond to that 
progress in settled public opinion which should 
affect the limitations upon the police power, or 
the meaning of due process of law, have generally 
been rendered by elected courts. Paradox as it 



SELECTION OF JUDGES 193 

may seem, the appointed judges are more discrimi- 
natingly responsive to the needs of a com- 
munity and to its settled views than judges chosen 
directly by the electorate, and this because the 
Executive is better quahfied to select greater 
experts. 

More than half a century's experience with the 
election of judges has not, therefore, commended 
it as the best method, though, for the reasons 
stated, its results up to this time are better than 
might have been expected. But with the changes 
proposed in the manner of making nominations 
and of conducting elections of judges the system 
is certain to become less satisfactory. Now we 
are to have no state or county or district conven- 
tions, and the judges are to be nominated by a 
plurality in a popular primary, and to be voted 
for at the election on a non-partisan ticket, with- 
out party emblems, or anything else to guide the 
voter. Like all the candidates for office to be 
elected under such conditions, they are expected 
to conduct their own canvass for their nomina- 
tion, to pay the expenses of their own candidacy 
in the primary, and in so far as any special effort 
is- to be made in favor of their nomination and 
election, they are to make it themselves. They 
are necessarily put in the attitude of supplicants 
before the people for preferment to judicial 



194s POPULAR GOVERNMENT 

places. Under the convention system it happened 
not infrequently, for reasons I have explained, 
that men who were not candidates were nominated 
for the Bench, but now in no case can the office 
seek the man. Nothing could more impair the 
quahty of lawyers available as candidates or 
depreciate the standard of the judiciary. It has 
been my official duty to look into the judiciary of 
each State in my search for candidates to be 
appointed to Federal judgeships, and I affirm 
without hesitation that in States where many of 
the elected judges in the past have had high rank, 
the introduction of nomination by direct primary 
has distinctly injured the character of the Bench 
for learning, courage and ability. The nomina- 
tion and election of a judge are now to be the 
result of his own activity and of fortuitous cir- 
cumstances. If the judge's name happens to be 
the first on the list, either at the primary or the 
election, he is apt to get more votes than others 
lower down on the list. The incumbent in office, 
because he happens to be more widely known, 
has a great advantage. Newspaper prominence 
plays a most important part, though founded on 
circumstances quite irrelevant in considering 
judicial qualities. 

The result of the present tendency is seen in the 
disgraceful exhibitions of men campaigning for 



SELECTION OF JUDGES 195 

the place of State Supreme Judge and asking 
votes, on the ground that their decisions will have 
a particular class flavor. This is the logical 
development of the view that a popular election is 
the only basis for determining right and justice ; 
but it is so shocking, and so out of keeping with 
the fixedness of moral principles which we learned 
at our mother's knee, and which find recogni- 
tion in the conscience of every man who has grown 
up under proper influence, that we ought to con- 
demn without stint a system which can encourage 
or permit such demagogic methods of securing 
judicial position. Through the class antagonism 
unjustly stirred up against the Courts, fiery 
faction is now to be introduced into the popular 
election of judges. Men are to be made judges 
not because they are impartial, but because they 
are advocates; not because they are judicial, but 
because they are partisan. 

It is true that politics have played a part even 
when judges have been appointed. They have 
usually been taken from the lawyers of the pre- 
vailing party. The President or a Governor 
appointing them has been elected on a partisan 
ticket, is the titular head of his party, and is 
expected to give preferment to those who sup- 
ported him. This has not, however, resulted in 
political courts, because the control of the Gov- 



196 POPULAR GOVERNMENT 

eminent has naturally changed from one party 
to another in the course of a generation and has 
normally brought to the Bench judges selected 
from both parties; and then, if the judges are 
made independent by the character of their 
tenure, the continued exercise of the judicial 
function entirely neutralizes in them any possible 
partisan tendency arising from the nature of 
their appointment. 

More than this, there is a noticeable disposition 
on the part of some Chief Executives to disregard 
party in making judicial appointments, and this 
ought to be so. In the early history of our 
country, and indeed down to the Civil War, the 
construction of the Constitution as to the powers 
of the Federal Government was a party question, 
and doubtless affected the selection of Federal 
Judges. Yet the effect of the judgments of Mar- 
shall and his Court was not weakened by Taney 
and his Democratic associates when they came to 
consider the Constitution. The Federalist party 
died in 1800, but its national view of our Govern- 
ment was vitahzed by John Marshall, and pre- 
served by the Supreme Court in unchanged form 
until the Civil War robbed the States' rights issue 
of its political and sectional importance. To-day 
a sound and eminent lawyer of either party, who 
can conscientiously take the oath to support the 



SELECTION OF JUDGES 197 

Constitution, may be appointed by a conscientious 
Executive. What is true of the National Govern- 
ment is true of the State governments, and there 
is not the slightest reason why an Executive should 
not appoint to the judiciary of his State qualified 
persons from either party. 

I come now to consider what should be the 
judicial tenure of office. In our Federal and 
State constitutions the rights of the individual 
as against the aggression of a majority of the 
electorate, and, therefore, against the Govern- 
ment itself, are declared and secured in a way 
peculiar to our Anglo-Saxon ancestors. The 
abstract declarations in favor of personal hberty 
and the right of property in the fundamental law 
of the continental countries were often as ample 
as in ours, but it was in the provision for the 
specific procedure to secure them that the early 
English charters of freedom, the Magna Charta, 
the Petition of Right and the Bill of Rights, were 
remarkable. This procedure is preserved in our 
constitutions and, upon the initiative of the indi- 
vidual who conceives his rights infringed, is to be 
invoked in the courts. Therefore, the first requi- 
site of the judiciary is independence of those 
branches through the aggression of which the 
rights of the individual may be impaired. The 
choice of the judges must always rest either in a 



198 POPULAR GOVERNMENT 

majority of the electorate of the people, or in a 
papular agent whom that majority selects, and 
so must be directly or indirectly in control of the 
party to be charged in such controversies with 
the infringement of individual rights. How, 
therefore, can we secure a tribunal impartial in 
recognizing such infringements and courageous 
enough to nullify them? It is only by hedging 
around the tenure of the judges after their selec- 
tion with an immunity from the control of a 
temporary majority in the electorate and from 
the influence of a partisan Executive or legisla- 
ture. 

Our forefathers who made the Federal Consti- 
tution had this idea in their minds as clear as the 
noonday sun, and it is to be regretted that in 
some of their descendants and of the successors in 
their poHtical trust this sound conception has 
been clouded. They provided that the salaries of 
the judges should not be reduced during their 
terms of office, and that they should hold office 
during good behavior, and that they should only 
be removed from office through impeachment by 
the House of Representatives and a trial by the 
Senate. The inability of Congress or of the 
Executive, after judges have been appointed and 
confirmed, to affect their tenure has given to the 
Federal judiciary an independence that has made 



SELECTION OF JUDGES 199 

it a bulwark of the liberty of the individual. On 
the other hand, this immunity has had some effect 
in making Congress grudge any betterment of 
the compensation to these great officers of the 
law. Congress has failed to recognize the 
increased cost of living as a reason for increasing 
judicial salaries, although this fact has furnished 
the ground for much other legislation. They 
have declined to conform the income of the judges 
to the dignity and station in life which they ought 
to maintain, and have kept them at so low a 
figure as to require from that class of lawyers 
who are likely to furnish the best candidates for 
judicial career a great pecuniary self-sacrifice in 
accepting appointment. I presume, therefore, 
that in spite of the efforts of the Bar and of men 
of affairs to increase judicial salaries, and in spite 
of the confession as to the cost of living in Wash- 
ington that actual service in the Grovemment 
wrings from the advocates of a simple hfe who 
happen to get into office, we must continue to 
require from those who have the honor, the respon- 
sibiHty and the labor of the exercise of judicial 
functions under the Federal Government, mean 
living and high thinking, and we must endure the 
indignation that is justly stirred in us when 
widows and children of men, able and patriotic, 
who have served their country faithfully and have 



200 POPULAR GOVERNMENT 

done enormous labor for two or three decades on 
the Bench, are left without sufficient means to live. 
Nothing but the life tenure of the Federal judi- 
ciary, its independence and its power of useful- 
ness have made it possible, with such inadequate 
salaries, to secure judges of a high average in 
learning, ability and character. 

When judges were only agents of the King to 
do his work, it was logical that they should hold 
office at his pleasure. Now, when there is a 
recrudescence of the idea that the judge is a mere 
agent of the sovereign to enforce his views as the 
only standards of justice and right, we naturally 
recur to the theory that judges should hold their 
office at the will of the present sovereign, to wit, 
the controlling majority or minority of the electo- 
rate. The judicial recall is a case of atavism and 
is a retrogression to the same sort of tenure that 
existed in the time of James I, Charles I, Charles 
II and James II, until its abuses led to the act of 
settlement securing to judges a tenure during 
their good behavior. It is argued that there is 
no reason to object to a recall of judges that does 
not apply to judges elected for a term of years. 
The answer is that the conceded objections to an 
elective judiciary holding for a short term of 
years are doubled in force in their application to 
judicial recall. The States which have elective 



SELECTION OF JUDGES 201 

judges have gotten along somehow through the 
political capacity of the American people and the 
force of pubhc opinion to make almost any system 
work. Under the present system a judge is 
certain to retain his position for a few years, and 
during that time at least he is free from interrup- 
tion or the threat of popular disapproval. This 
certainty of tenure, though short, conduces to the 
independent administration of his office. As he 
draws near another election and hopes to have 
another term, it is true that his courage and his 
impartial attitude toward issues that have any 
political bearing are likely to be severely tested. 
Because the country has survived a judiciary 
largely selected in this manner does not seem to 
be a very strong reason why we should proceed 
to increase the evil effect of the short tenure by 
making it merely at the will of the plurality of 
those of the electorate who choose to vote. 

I have stated my reasons for thinking that 
appointment of judges results in the selection of 
better experts in the science of law than the 
elective system. But even if the qualifications 
of the two incumbents under the two systems were 
equal upon their accession to office, the longer 
experience afforded by the life tenure and the 
greater opportunity it gives to learn the judicial 
duties make the better average judges. It 



202 POPULAR GOVERNMENT 

matters not how experienced a man may be in the 
learning of the law, and in its practice, there are 
still lessons before him which he must learn before 
he can become of the greatest public service. 

Other benefits from the Hfe tenure in its effect 
upon the judges who enjoy it are that it makes 
the incumbents give their whole mind to their 
work, to order their household with a view to 
always being judges, and to take vows, so to 
speak, as to their future conduct. They must put 
aside all poKtical ambition. One of the great 
debts which the American people owe to Mr. 
Justice Hughes is the example that he set in the 
last presidential election when the most serious 
consideration was being given to making him the 
candidate of the Republican party. He an- 
nounced his irrevocable determination not to enter 
the political field because he had assumed the 
judicial ermine. 

What, now, are the objections urged to a life 
tenure? The first is that it makes judges irre- 
sponsible, in the sense that they are so freed from 
the effect of what people think of them that they 
are likely to do unjust and arbitrary things. The 
immunity of life tenure does make some judges 
forget that it is nearly as essential to give the 
appearance of doing justice as it is to do sub- 
stantial justice. They forget that the public 



SELECTION OF JUDGES 203 

must have confidence in, and respect for, the 
Courts in order that they achieve their highest 
usefulness in composing dangerous differences 
and securing tranquillity and voluntary acquies- 
cence in the existing order. Still, the life judges 
in whom these faults really exist are compara- 
tively few. The criticism is apt to be made in 
many cases where it is not deserved, because of 
the contrast that lawyers and litigants find in 
dealing with courts under the two systems. The 
Federal Judges have the power which the English 
judges have. They are so far removed from 
politics or the fear of election that the counsel 
before them receive only the consideration which 
their eminence as lawyers justifies. Under State 
statutes, foUowing the tendency to minimize the 
power of the Court, the judge is greatly re- 
stricted in the exercise of discretion to free the 
issue before the Court from irrelevant and con- 
fusing considerations. The jury trial given by 
the Federal Constitution is the trial at common 
law given by a court and jury, in which the court 
exercises the proper authority in the management 
of the trial and assists the jury in a useful analy- 
sis and summing up of the evidence, and an 
expression of such opinions as will help the jury 
to reach right conclusions. All this tends to 
eliminate much of what ahnost might be called 



204 POPULAR GOVERNMENT 

demagogic discussion, which counsel are prone to 
resort to in many of the local State Courts, and 
which the State judge fears to limit lest it be 
made the basis of error and a ground for new 
trial under some statute narrowing his useful 
power. We must, therefore, weigh the frequent 
characterization of the Federal Judge as a petty 
tyrant in the light of the contrast between proper 
authority exercised by him and the control exer- 
cised by judges in State Courts, where oppor- 
tunity is too frequently given to the jury to 
ignore the charge of the court, to yield to the 
histrionic eloquence of counsel, and to give a 
verdict according to their emotions instead of 
their reason and their oaths. Why is it that every 
lawbreaker prefers to be tried in a State Court? 
Why is it that the Federal Courts are the terror 
of evildoers? One of the reasons may be found 
in the better organization of the Federal prose- 
cuting system. But is it not chiefly because the 
judge retains his traditional control of the 
manner of the trial and of the counsel and really 
helps, but does not constrain, the jury to a just 
verdict? Is it not because law and justice more 
certainly prevail there rather than buncombe and 
mere sentiment? 

But it is said that the unpopularity of the 
Federal Courts among the lawyers as a whole 



SELECTION OF JUDGES 205 

shows that the life tenure has a bad effect upon 
their character as judges. I agree that when a 
judge is thoroughly disliked by the Bar, who are 
his ministers and assistants, it is generally his 
fault, because he has much opportunity properly 
to cultivate their good will and respect. Still, 
much must be allowed for in the impatience of 
the general Bar at Federal Judges, because there 
are many lawyers who appear but rarely in 
United States Courts, are embarrassed by their 
unfamiliarity with the mode of practice, and feel 
themselves in a strange and alien forum. 

There are substantial causes for the local 
unpopularity of Federal Courts and these exist 
without any fault of the judges. The chief 
reason for creating local courts under the Federal 
authority was to give to non-residents an oppor- 
tunity to have their cases tried in a court free 
from local prejudice before a judge who had the 
commission of the President of the whole country, 
rather than a judge whose mandate was that of 
the Governor of the State where the cause was 
tried, or of the people of the county in which the 
court was held. In other words, the very office 
which they serve, that of neutralizing local preju- 
dice, necessarily brings them more or less into 
antagonism with the people among whom such 
local prejudice exists. 



206 POPULAR GOVERNMENT 

A similar answer may be made to the charge 
against the Federal Courts, that they are biased 
in favor of corporations. This has grown 
naturally out of their peculiar jurisdiction. 
Throughout the Western and Southern States, 
foreign capital has been expended for the purpose 
of development and in the interest of the people 
of those sections. They have been able to secure 
these investments on reasonable terms by the 
presence in their communities of the Federal 
Courts, where the owners of foreign capital think 
themselves secure in the maintenance of their just 
rights when they are obliged to resort to litiga- 
tion. While this has been of inestimable benefit 
in rapid settlement and progress, it has not con- 
duced to the popularity of the Federal Courts. 
Men borrow with avidity, but pay with reluctance, 
and do not look upon the tribunal that forces 
them to pay with any degree of love or approval. 

Then, an important part of the litigation in 
the Federal Courts on the civil side consists of 
suits brought to prevent infringement by State 
action of the right of property secured by the 
Fourteenth Amendment to the Constitution. 
Such action is usually directed against large cor- 
porations, who thus become complainants. If 
any such suits are successful, and State action is 
enjoined, it is easy for the demagogue and the 



SELECTION OF JUDGES 207 

muckraker to arouse popular feeling by assertion 
that the Federal Courts are prone to favor cor- 
porate interests. It is not the bias of the judges, 
but the nature of their jurisdiction, that properly 
leads litigants of this kind to seek the Federal 
forum. The unsuccessful suits of this kind are 
never considered by the critics of the Federal 
judiciary. Hence the plausibility of the charge. 
But it is unjust. In no other courts have the 
prosecution of great corporations by the Govern- 
ment been carried on with such success and such 
certainty of judgment for the wrongdoer, and the 
influence of powerful financial interests has had no 
weight with the Federal Judges to prevent the 
enforcement of law against them. 

Again, the litigation between non-resident 
railway and other corporations and their em- 
ployees in damage suits has usually been removed 
from the State Courts to the Federal Courts, 
where a more rigid rule of law limiting the lia- 
bility of the employer has been enforced. This has 
created a sense of injustice and friction in local 
communities that is entirely natural, and has 
given further support to the charge that the 
Federal Courts are the refuge of great corpora- 
tions from just obligation. It was the business 
of Congress to remove this by adopting an inter- 
state commerce employers' liability act like that 



208 POPULAR GOVERNMENT 

which is now on the statute book, giving the 
employees much fairer treatment, and by passing 
the workman's compensation bill which is pending 
in Congress and will, I hope, soon be enacted into 
law. 

But it is said, "When you get a bad judge you 
cannot get rid of him under the life system." 
That is true unless he shows his unworthiness in 
such a way as to permit his removal by impeach- 
ment. Under the authoritative construction by 
the highest court of impeachment, the Senate of 
the United States, a high misdemeanor for which 
a judge may be removed is misconduct involving 
bad faith or wantonness or recklessness in his 
judicial action or in the use of his judicial influ- 
ence for ulterior purpose. The last impeachment 
and removal of a Federal Judge, that of Judge 
Archbald, was on the ground that he sought sales 
of property from railroad companies, or their 
subsidiary corporations, which were likely to be 
litigants in his courts, and indicated clearly by 
a series of transactions of this sort his hope and 
purpose that such companies would be moved to 
comply with his request because of his judicial 
position. The trial and the judgment were most 
useful in demonstrating to all incumbents of the 
Federal Bench that they must be careful in their 
conduct outside of Court as well as in the Court 



SELECTION OF JUDGES 209 

itself, and that they must not use the prestige of 
their judicial position, directly or indirectly, to 
secure personal benefit. Mr. Justice Chase was 
tried in Jeiferson's time for gross improprieties 
of a partisan political character calculated to 
cast discredit on his Court. It would seem in this 
day and generation that he ought to have been 
removed, but the spirit of the impeachers was so 
partisan and political that it frightened many of 
the Senators and neutralized the improprieties 
that were made the subject of the impeachment 
articles. It was this case which evoked from 
Thomas Jefferson the comment that impeach- 
ment was "the scarecrow" of the Constitution, 
and that it was impracticable as a means of dis- 
ciplining judges. Under the ruling in the Arch- 
bald case and the evident tendency of the Senate, 
the criticism of Jefferson has lost much of its 
force. 

The procedure in impeachment is faulty, be- 
cause it takes up the time of the Senate in long- 
drawn-out trials. This fact is apt to discourage 
resort to the remedy and has lessened its proper 
admonitory and disciplinary influence. The pres- 
sure upon both Houses for legislation is so great 
that the time needed for inquest and trial is 
grudgingly given. An impeachment court of 
judges has been suggested, but the public would 



210 POPULAR GOVERNMENT 

fear in it lenity toward old associates. The wis- 
dom of having the trial by the higher branch of 
the Congress, entirely free from the spirit of the 
guild, commended itself to the framers of the 
Constitution and is manifest. A change in the 
mode of impeachment, however, so as to reduce 
materially the time required of the Senate in the 
proceeding, would be of the greatest advantage. 
If the whole Senate were not required to sit in the 
actual trial, and the duty were remitted to a 
committee like the judiciary committee of that 
body, whose decision could be carried on review to 
the Senate in full session, the procedure might be 
much shortened. The Judicial Committee of the 
Enghsh Privy Council is now a supreme court for 
colonial appeals, probably having its origin in the 
difficulty of assembling the whole Council to 
attend to litigated causes. The English House of 
Lords is a court, but sits only with the Law 
Lords, who are really a judiciary committee of 
the Peers to act as such. 

It has been proposed that instead of impeach- 
ment, judges should be removed by a joint reso- 
lution of the House and the Senate, in analogy to 
the method of removing judges in England 
through an address of both Houses to the King. 
This provision occurs in the Constitution of 
Massachusetts and in that of some other States, 



SELECTION OF JUDGES 211 

but it is very clear that this can only be justly 
done after full defense, hearing and argument. 
Professor Mcllwain of Harvard has written a 
very instructive article on the subject of removal 
by address in England, in which he points out 
that this is a most formal method, and that 
in the only case of actual removal of a judge by 
this method a hearing was had before both Houses 
of Parliament quite as full, quite as time-consum- 
ing and quite as judicial as in the proceeding by 
impeachment. Advocates of the preposterous 
innovation of judicial recall have relied upon the 
method of removal of judges as a precedent, but 
the reference only shows a failure on the part of 
those who make it to understand what was the 
removal by address. 

By the liberal interpretation of the term "high 
misdemeanor," which the Senate has given it, 
there is now no difficulty in securing the removal 
of a judge for any reason that shows him unfit, 
and if the machinery for holding the trial could 
be changed from the full Senate to a judicial 
committee, with the possible appeal to the whole 
body, impeachment would become a remedy 
entirely practical and effective. 

One who is convinced that the Federal judi- 
ciary, both supreme and inferior, because they are 
appointed and hold office for life, are the greatest 



212 POPULAR GOVERNMENT 

bulwark in the protection of individual right and 
individual Hberty and the permanent maintenance 
of just popular government, must have a strong 
personal resentment against any member of that 
body who in any way brings discredit on the 
Federal judiciary and weakens its claim to pubHc 
confidence. I feel, therefore, no leniency or dis- 
position to save the Federal Judges from just 
criticism and I am far from making light of 
serious charges against them or of defects that 
have cropped out from time to time. 

Some local Federal Judges are not sufficiently 
careful to avoid arousing local antagonism in 
cases where they have a choice as to the method of 
granting a suitor relief. Congress has taken 
steps in this direction so that one judge is not 
enough to authorize an injunction where it is 
sought to prevent the enforcement of a State 
statute claimed to violate individual rights. 

Again, the patronage that judges have exer- 
cised has disclosed a weakness that can be pre- 
vented by changing the system. Judges now 
appoint clerks and the relation established be- 
tween the judge and the clerk is so close and 
confidential that it is often difficult to secure from 
the judge the proper attitude of criticism toward 
the clerk's misconduct. I am convinced that the 
clerks ought to be appointed by the Executive, 



SELECTION OF JUDGES 213 

be brought within the classified civil service, and 
be subject to removal for cause either by the 
Executive or by the judge. 

Abuses have grown out of court appointments 
to receiverships and to other temporary lucrative 
positions. It would be well if possible to relieve 
the judges of such duties. In the case of national 
banks, the receivers are appointed, not by the 
Courts, but by the Comptroller of the Currency. 
I think it might be well in the case of interstate 
railroads, the creditors of which seek relief in the 
Federal Court, to have the receivers appointed 
by the Interstate Commerce Commission. Pat- 
ronage is very difficult to dispense. It gives to 
the Court a meretricious power and casts upon it 
a duty that is quite likely to involve the Court in 
controversies adding neither to its dignity nor its 
hold upon the confidence of the public. Some 
great English judges have tarnished their repu- 
tation in its use. A receiver appointed by another 
authority would be quite sufficiently under control 
of the Court if the Court could remove him for 
cause and punish him for contempt of its orders. 

Again, the judges in the Federal Courts have 
not shown as strong a disposition as they should 
to cut down the expenses of litigation ; but this is 
completely in the control of Congress, which 
would help the people much more by enacting a 



214 POPULAR GOVERNMENT 

proper fee bill than by such attempts as we have 
seen, to impair the power of Courts to enforce 
their lawful decrees. The attitude of the Federal 
Courts as to the cost of litigation was originally 
brought about by the increase in litigation and 
the hope that heavy costs would operate as a limi- 
tation, but this works great injustice and is an 
improper means to the end. 

The great defects in the administration of jus- 
tice in our country are in the failure to enforce 
the criminal laws through delay and ineffective- 
ness of prosecution in the criminal courts, and in 
the cost and lack of dispatch in civil suits. In 
the enforcement of the criminal laws of the United 
States in the Federal Courts there is little to criti- 
cise. They might well serve as models to the 
State Courts. On the civil side, the same cannot 
be said. The costs may be and ought to be 
greatly reduced. The procedure in equity causes 
has been greatly simplified by the new equity rules 
just issued by the Supreme Court. A bill to 
authorize that Court to effect the same result in 
cases at law is likely soon to pass. Then we may 
hope that the Federal Courts will furnish a com- 
plete object lesson to State legislatures in cheap, 
speedy and impartial judgment. 

I have thus taxed your patience with the 
reasons that convince me that appointment and a 



SELECTION OF JUDGES 215 

life tenure are essential to a satisfactory judicial 
system. They may seem trite and obvious, but I 
have thought in the present disposition to ques- 
tion every principle of popular government that 
has prevailed for more than a century, that it 
might be well, at the risk of being commonplace, 
to review them. 

In the present attitude of many of the electo- 
rate toward the Courts, it is perhaps hopeless to 
expect the States, in which judges are elected for 
short terms, to return to tKe appointment of 
judges for life. But it is not in vain to urge its 
advantages. The Federal Judges are still ap- 
pointed for life, and it will be a sad day for our 
country if a change be made either in the mode of 
their selection or the character of their tenure. 
These are what enable the Federal Courts to 
secure the liberty of the individual and to preserve 
just popular government. 



IX 

"To Establish Justice" — (Continued) 

Public Need of Educated Lawyers and Judges 

The Necessity and Advantage op 
Judge-Made Laws 

A great French judge truly said that the pro- 
fession of the law was "as old as the Magistrate, 
as noble as Virtue, and as necessary as Justice." 
The importance of having a Bar, the members of 
which are sufficiently skilled in the principles of 
law and the procedure of the Courts, properly to 
advise laymen as to their rights and the method 
of asserting or defending them, and to represent 
them in judicial controversies, I need not dwell 
upon. It has been the habit in many States to 
regard the practice of the law as a natural right, 
and one of which no one of moral character can 
be deprived. Such a view of course ignores the 
importance of the profession to society and looks 
at its practice only as a means of earning a living. 
Laymen can readily be made to see that society 
should be protected against the malpractice of 
the medical profession and surgery by men who 



IMPORTANCE OF STANDARDS 217 

know nothing of disease or the effect of medicine, 
or the handling of a surgical instrument. It is, 
therefore, comparatively free from difficulty to 
secure laws prescribing proper educational quali- 
fications for those holding themselves out as 
physicians or surgeons. The danger to society of 
the misuse of the power which a lawyer's pro- 
fession enables him to exercise is not so acutely 
impressed upon the layman until he has had some 
experience in following bad advice. A legal 
adviser can not ordinarily injure his client's 
bodily health, but he can lead him into great 
pecuniary loss and subject him and his family to 
suffering and want. The more thorough the 
general education of one who proposes to be a 
lawyer, the more certainly his mind will be dis- 
ciplined to possess himself of the principles of 
law and properly to apply them. There is a 
spirit of hostility manifested by some courts and 
lawyers, and some who are not lawyers, to the 
suggestion that a fundamental general education 
is necessary to the making of a qualified member 
of the legal profession. In Indiana the constitu- 
tion impliedly forbids the imposition of examina- 
tion for admission to the Bar. The argument is : 
"Look at Abraham Lincoln. He never had any 
education of any sort. He educated himself, and 
note his greatness both as a lawyer, a statesman 



218 POPULAR GOVERNMENT 

and a man." Such an argument would do away 
not only with the necessity for education at the 
Bar, but the necessity for school or colleges of 
any kind. The question is not whether excep- 
tional men have made themselves learned men, 
educated men and great lawyers without the use 
of schools, academies, colleges or law schools, but 
the question is by what means are we Hkely to 
produce the best average members of the profes- 
sion. By what means are we most likely to make 
them skilled and able and useful in the office for 
which the profession is created? Certain law 
schools in the country have imposed the necessity 
for a collegiate education upon intending lawyers 
before they shall begin the study of their profes- 
sion. In the medical profession, schools of a simi- 
lar standard require, after the Bachelor's degree, 
a study of four years. In the law schools a study 
of three years is now generally required, and in 
many States the same period has been fixed as 
the necessary period of preparation for the Bar 
examinations. It is said this will exclude many 
worthy young men who would aspire to the law. 
As the reason of the profession for being is to 
serve society, the interest of society is the point 
from which we must approach the question, and 
but little consideration should be given to the 
welfare of those who would like to practice law 



IMPORTANCE OF STANDARDS 219 

and are not fitted to do it well. The graduates of 
colleges are in number greatly more than suffi- 
cient to supply the needs of the clerical, the medi- 
cal and the legal professions, and there is no dan- 
ger that there will be any dearth of lawyers of 
good material because a heavier burden of prepa- 
ration is required of them. The view that the pro- 
fession exists solely as a livelihood creates a 
demand for law schools furnishing the easiest and 
shortest way for their students to acquire the 
temporary information needed to pass the re- 
quired examinations. Such schools are cramming 
factories with no thought to the broad legal edu- 
cation which students should bring to the practice 
after they are admitted to the Bar. They confer 
only a smattering of the law and only a transient 
familiarity with the subjects upon which they are 
examined. Men who are thus prepared may 
become good lawyers, but if they do, it will be 
because of their natural mental capacity and the 
education that they give themselves afterwards, 
and not because of any basis of legal learning 
they acquired in such schools. For the good of 
society, the standards of legal education ought 
to be made higher and a broad collegiate educa- 
tion before the study of the law should be insisted 
upon as the sine qua non. 

In most States the question of the admission to 



220 POPULAR GOVERNMENT 

the Bar is given to the Supreme Courts. It should 
be possible, therefore, to secure, through such 
good and eminent lawyers, a proper standard for 
the making of new lawyers. They ought, of all 
men, to appreciate in the highest degree the 
benefit in the administration of justice of requir- 
ing the most thorough preparation for the prac- 
tice of the profession. They could impose a stan- 
dard for preliminary and fundamental education, 
and then for the education in law. Of course the 
judges do not generally prepare the questions 
for examination, or mark them. They delegate 
this to a committee of lawyers. When we find 
in one of the great States of the Union a com- 
mittee of examination that imposed questions 
based on cases taken from reports of its own 
State, some of doubtful authority, and gave no 
credit for answers which differed from the deci- 
sions of the Courts, however good the reasons, we 
are not surprised to learn that some of the best 
prepared students from first-class law schools 
were rejected, and that applicants with education 
in the law much less thorough were admitted. The 
latter pursued the course of studying the special 
character of previous questions and "cramming" 
the answers to them from a book prepared by one 
of the committee. This book shows not a few 
instances in which the answers required were 



IMPORTANCE OF STANDARDS 221 

hardly sustained by good authority, even in the 
particular State. Some features of this bad 
system have been changed. The reform should be 
more radical. No court that knowingly permits 
such a system to remain in vogue can escape 
criticism. Examinations of this kind commer- 
cialize the practice of the law more than any 
other one. Those who come to the Bar by a mere 
trick of memory, and without thorough absorp- 
tion of legal principles, are not likely to improve 
the tone of the practice to which they have suc- 
ceeded by such means. 

What I wish to dwell upon especially here is 
the influence of a proper standard for admission 
to the Bar on another function of lawyers than 
that of advising and representing clients. We get 
our judges from the Bar, and we add to the educa- 
tion of our judges when they are on the Bench by 
the Bar. It is the tone of the Bar, therefore, and 
the ability and learning of the Bar that necessarily 
aff^ect the learning and standards of the Bench. 
The influence of a great Bar to make a great 
court and to secure a series of great decisions, 
every one familiar with judicial history knows. 

The function of judges is to interpret consti- 
tutions and statutes, and apply and enforce them, 
and also to declare and apply that great body of 
customary law known as common law which we 



222 POPULAR GOVERNMENT 

received from past generations. According to 
the view and theory of one who does not under- 
stand the practical administration of justice, 
judges should interpret the exact intention of 
those who established the Constitution, or who 
enacted the legislation, and should apply the 
common law exactly as it came to them. But 
frequently new conditions arise which those who 
were responsible for the written law could not 
have had in view, and to which existing common 
law principles have never before been applied, and 
it becomes necessary for the Court to make new 
applications of both. The power which the Court 
thus exercises is said to be a legislative power, and 
it is urged that it ought to be left to the people. 
That it is more than a mere interpretation of the 
legislative or popular will, and in the case of the 
common law that it is more than a mere investi- 
gation and declaration of traditional law is un- 
doubtedly true* But it is not the exercise of 
legislative power as that phrase is used. It is 
the exercise of a sound judicial discretion in sup- 
plementing the provisions of constitutions and 
laws and custom, which are necessarily incomplete 
or lacking in detail essential to their proper appli- 
cation, especially to new facts and situations con- 
stantly arising. Then, too, legislation is fre- 
quently so faulty in proper provision for con- 



IMPORTANCE OF STANDARDS 223 

tingencies which ought to have been anticipated 
that courts can not enforce the law without 
supplying the defects and implying legislative 
intention, although everyone may recognize that 
the legislative body never thought anything 
about the operation of the law in such cases and 
never had any intention in regard to them. 
Neither constitutional convention nor legislature 
nor popular referendum can make constitutions 
or laws that will fit with certainty of specifica- 
tion the varying phrases of the subject matter 
sought to be regulated, and it has been the office 
of courts to do this from time immemorial. 
Indeed, it is one of the highest and most useful 
functions that courts have to perform in making 
a government of law practical and uniformly 
just. You can call it a legislative power if you 
will, but that does not put you one bit nearer a 
sufficient reason for denying the utility and 
necessity of its exercise by courts. 

Of all the people in the world who ought not to 
be heard in objection are the advocates of the 
initiative and referendum as a means of legisla- 
tion. Legislatures and constitutional conven- 
tions have been bad enough in the enactment of 
measures inconsistent in themselves, and full of 
difficulty for those charged with their enforce- 
ment ; but now it is proposed to leave the drafting 



224, POPULAR GOVERNMENT 

of laws to individual initiative and to submit them 
to popular adoption without any possibihty of 
correction and needed amendment after discus- 
sion, which is always afforded in the representative 
system. The puzzles in legislation now presented 
to courts by this new method of making laws can 
be better understood by reading some of the per- 
spiring efforts of the Supreme Court of Oregon. 
Instead of dispensing with courts, this purer and 
directer democracy is going to force upon judi- 
cial tribunals greater so-called legislative duties 
than ever. Of course legislatures and the people 
have always the power to negative the future 
application of any judicial construction of a con- 
stitution, or a law, or any declaration of a com- 
mon law principle, by amendment or new law. 
The practical impossibility of making laws that 
are universally applicable to every case has 
thrown upon the Courts the duty of supplying the 
deficiency either by construction of written laws 
or constructive application of the conmion law. 
This discretion of courts is guided and limited 
by judicial precedents. The precedents form a 
body of law called judge-made law by those who 
would attack it; but it is better to have judge- 
made law than no law at all. Indeed the curative 
and lubricating effect of this kind of law is what 
has made our popular governmental machinery 



IMPORTANCE OF STANDARDS 225 

work so smoothly and well. I can not refer at 
length to the now much-mooted question of the 
power of the Courts to refuse to recognize legis- 
lative acts which are beyond the permissible dis- 
cretion of the legislature in construing its own 
constitutional authority. I can only say that the 
power has been exercised for one hundred and 
twenty-five years and unless the Courts continue 
to retain it, individual rights and every interest 
of all the people will come under the arbitrary 
discretion of a constantly changing plurality of 
the electorate to be exercised by varying and 
inconsistent decisions of successive elections. 

But however necessary it is to entrust such 
discretion to the Courts, we must recognize that 
its existence is made the basis for a general 
attack, by professed reformers of society, upon 
our judicial system, and that this attack is find- 
ing much sympathy among the people. There 
are good grounds for criticising our present 
administration of justice in the lax enforcement 
of the criminal law and in the high cost and lack 
of dispatch in civil litigation. 

These defects are not all chargeable to the 
Courts themselves, by any means. The lax admin- 
istration of the criminal law is due in a marked 
degree to the prevalence of maudlin sentiment 
among the people, and the alluring limelight in 



226 POPULAR GOVERNMENT 

which the criminal walks if only he can give a 
little sensational coloring to his mean or sordid 
offense. Then the State legislatures, responding 
perhaps to a popular demand, and too often 
influenced by shallow but for the time being politi- 
cally influential members of our own profession, 
debase every means to deprive the Court of its 
power at common law to control the manner of 
trial and to assist the juries, but not to constrain 
them, to right conclusions. Codes of procedure 
of immense volume and exasperating detail keep 
litigants "pawing in the vestibule of justice" 
while the chance of doing real justice fades away. 
Then, too, unnecessary opportunity for appeals 
and writs of error and new trials is afi^orded by 
statute, and the litigant with the longest purse is 
given a great advantage. More than this, many 
questions that ought to be settled by administra- 
tive tribunals with proper authority have been 
thrust upon the Courts. This has had two eff*ects. 
It involves the Courts in quasi-poHtical and eco- 
nomic controversies which they ought not to be 
burdened with, and which necessarily expose them 
to criticism as being prejudiced. Second, it takes 
up the time of the Courts in executive matters and 
delays dispatch of legitimate judicial work. The 
creation of the interstate commerce commission, 
of State public utilities commissions, of boards of 



IMPORTANCE OF STANDARDS 227 

conciliation and arbitration in labor contro- 
versies, of commissions for fixing compensation 
for injured workmen, and of other executive 
agencies for the determination of issues involved 
in proper governmental regulation and exercise 
of the police power, is hfting much from the 
Courts. Then the American Bar Association and 
many State associations are zealously and success- 
fully working to induce legislatures and courts by 
statute and rules to simplify procedure and make 
it a vehicle of quick justice at little cost. 

But the lax administration of the criminal law 
and the cost and delay of civil litigation are not 
the special objects of attack by social reformers. 
Their fire is directed against what they call the 
legislative power of the Courts that I have de- 
scribed. This they contend is now being exer- 
cised to defeat measures essential to true social 
progress by reactionary judges. Let us trace out 
the reasons for this antagonism and perhaps in 
them we can find the true solution of the difficulty 
so far as there is any real substance in their 
complaint. 

In the Federal Constitution there were em- 
bodied two great principles, first, that the Gov- 
ernment should be a representative popular 
government, in which every class in society, the 
members of which have intelligence to know what 



228 POPULAR GOVERNMENT 

will benefit them, is given a voice in selecting the 
representatives who are to carry on the Govern- 
ment and in determining its general pohcj. On 
the other hand, the same Constitution exalts the 
personal rights and opportunities of the indi- 
vidual and prescribes the judicial machinery for 
their preservation, against the infringement by 
the majority of the electorate in whose hands was 
placed the direction of the executive and legisla- 
tive branches of the Government. The common 
law rule was followed, by which each individual 
was given independence in his action, so long as 
that independence did not infringe the independ- 
ence of another. This has given the motive for 
labor, industry, saving and the sharpening of 
intellect and skill in the production of wealth and 
its re-use as capital to increase itself. The 
material expansion of our country, unprecedented 
in history, would have been utterly impossible 
without it. When the Constitution was adopted, 
there was not only legal independence of the 
individual, but actual independence in his method 
of life, because he could and did produce almost 
everything that was needed for his comfort in the 
then standard of living. We have now become a 
people with an immense urban population, far 
from the sources of necessary supply, and, there- 
fore, we have become far more dependent on each 



IMPORTANCE OF STANDARDS 229 

other that life may go on and be enjoyed. While 
it is undoubtedly true that the living of the aver- 
age individual is far more comfortable than it 
ever was, we have now reached a point in the 
progress of our material development when we are 
stopping to take breath and to make more 
account of those who are behind in the race. We 
are more sensitive to the inequality of conditions 
that exist among the people and the enjoyment 
of the comforts of life. We are pausing to inquire 
whether, by governmental action, some changes 
can not be made in the legal relations between the 
social classes, and in the amelioration of oppres- 
sive conditions affecting those who in the compe- 
tition between individuals under existing institu- 
tions are receiving least advantage from the 
general material advance. It is essential that our 
material expansion should continue, in order to 
meet the demands of the growing population and 
to increase the general comfort. Were we to take 
away the selfish motive involved in private prop- 
erty we would halt, stagnate and then retro- 
grade, the average comfort and happiness in 
society would be diminished, and those who are 
now in want would be poorer than ever. The 
trend of those who would improve society by col- 
lectivist legislation is toward increasing the func- 
tions of government, and one of the great difScul- 



230 POPULAR GOVERNMENT 

ties they have to meet is provision for the rapidly 
increasing pecuniary burden thus entailed. Mu- 
nicipalities and States which have attempted some- 
thing of this kind are finding that their credit is 
exhausted and their tax resources insufficient. 
Whatever the changes, therefore, we must main- 
tain, for the sake of society, our institutional 
system of individual reward, or Httle of the pro- 
gress so enthusiastically sought can be attained. 
It is not alone constitutional restraints which 
limit thoughtless, unjust and arbitrary popular 
excesses, but also those of economic laws and the 
character of human nature, and these latter work 
with seemingly cruel inevitableness which ought to 
carry its useful lesson home. 

The social reformers contend that the old legal 
justice consisted chiefly in securing to each indi- 
vidual his rights in property or contracts, but 
that the new social justice must consider how it 
can secure for each individual a standard of liv- 
ing and such a share in the values of civilization 
as shall make possible a full moral life. They 
say that legal justice is the removal of all those 
restrictions on the free action of an individual 
which are not necessary for securing the like 
freedom on the part of his neighbors, while social 
justice is the satisfaction of every one's wants so 
far as they are not outweighed by others' wants. 



IMPORTANCE OF STANDARDS 231 

The change advocated by the social reformers is 
really that the object of law should be social 
interests and not individual interests. They 
unjustly assume that individual rights are held 
inviolate only in the interest of the individual to 
whom such rights are selfishly important and not 
because their preservation benefits the community. 
On the contrary, personal liberty, including the 
right of property, is insisted upon because it con- 
duces to the expansion of material resources 
which are plainly essential to the interests of 
society and its progress. We must continue to 
maintain it whether our aim is individualistic or 
social. As long as human nature is constituted as 
it is, this will be true. When only altruistic 
motives actuate men, it may be different. 

But we must recognize the strong popular 
interest in the sociological movement and realize 
the importance of giving it a practical and suc- 
cessful issue. We are not tied to the defects of 
the past, or present, and we ought to be anxious 
to guide the proposed reforms so that we shall 
secure all the good possible from them without 
ignoring the inestimable boon of experience we 
have inherited from centuries of struggle toward 
better things. 

The Supreme Court of the United States has 
given many evidences of its appreciation of the 



232 POPULAR GOVERNMENT 

changes in settled public opinion in respect to 
the quaHfication of individual rights by the needs 
of society. Its definition or rather lack of defi- 
nition of the police power, and its proposed 
method of pricking out its limitations in accord 
with predominant public opinion, is an example. 
Indeed, many other instances of the infusion of 
social ideas into the law by construction of reme- 
dial statutes and by adjustment of common law 
principles to cases of social justice could be cited. 
It is noteworthy that this is most evident in the 
highest of our Courts with judges of greatest 
experience, ability and learning in fundamental 
jurisprudence and of statesmanlike constructive 
faculty. It is through discrimination and far- 
sighted legislators and through great and learned 
judges that we can safely and surely achieve the 
social changes and reforms within the practical 
range of enforceable law. It must be remem- 
bered that with men as they are, government and 
law can not make every change in society however 
desirable. Law which is unenforceable or ineffec- 
tive is worse than none. There are zones in the 
field of social relations in which progress can only 
be made by the moral uplift of the individual mem- 
bers of society, and in which the use of legal 
compulsion is worse than futile. 

Nevertheless, many who are infused with the 



IMPORTANCE OF STANDARDS 233 

new ideas are prone to look askance upon what 
they call the individualistic system and are quite 
willing to do away with the constitutional 
restraints and the teachings and influence of the 
common law upon which such a system must rest. 
Relying upon the willingness of an inflamed 
majority to possess themselves of advantages 
over a minority, or the individual, they advocate 
remedies that tend toward confiscation. 

Attempts made to carry out such ideas have, 
of course, startled the owners of property and 
capital to measures of defense and leading mem- 
bers of the Bar have ranged themselves in support 
of these measures. Indeed, in the enormous ma- 
terial development, the services of the profession 
have been invoked and often to protect methods 
that were indefensible. The profession has suf- 
fered from not having that independence of 
clients, enjoyed by English barristers, in which 
the relation between the two is temporary and 
but for a single cause. Such a relation does not 
produce that widespread, popular impression of 
complete identity of the professional advocate and 
adviser with the client, especially the corporate 
client and all its interests and plans. For these 
reasons our profession at present is under sus- 
picion of being subsidized by our relation to the 
property of our clients, and of not being able to 



234 POPULAR GOVERNMENT 

discuss without prejudice the betterment of pres- 
ent conditions in society. Those who are advo- 
cating these reforms propose, therefore, in the 
future largely to dispense with lawyers, largely to 
dispense with constitutional restraints and to 
place their whole confidence in the direct action of 
the people, not only in the enactment of laws, not 
only in their execution and enforcement, but also 
in the judicial function of determining justice in 
individual cases. This hostility to our profession, 
while it is natural and can be explained, is unjust. 
We are as intelHgent, generous, patriotic, self- 
sacrificing and sympathetic a class as there is in 
society. We are not opposed to progress, real 
progress. Moreover, we know how to do things, 
and in the end no successful legal step forward 
will be made without our aid and shaping. We 
are far from lacking in a desire to improve social 
conditions. We recognize the inequalities exist- 
ing between social classes in our communities, and 
agree to the necessity of new legal conceptions of 
their duties toward each other. But we have 
been driven by circumstances into an attitude of 
opposition. The proposals made for progress 
have been so radical, so entirely a departure from 
all the lessons of the past and so dangerous to 
what we regard as essential in preserving the 
inestimable social advances we have made since 



IMPORTANCE OF STANDARDS 235 

the Christian era, that we have been forced to 
protest. The result is that at present the mih- 
tant social reformers and the lawyers are far 
apart. We don't talk exactly the same language. 
It is enough to answer our expressed opinions for 
them to say that we think and talk as lawyers. 

What, then, is it necessary for us to do in this 
coming crisis ; for it is a crisis in the Hfe of courts 
and administration of justice. Many of the 
social reformers are oblivious of the lessons to be 
derived from experience in enforcement and 
operation of laws upon society. They do not 
reahze the necessity for making the many differ- 
ent rules of law fit a system that shall work. 
They bring to the repair of a mechanism of inter- 
locking parts, rude and unsuitable instruments. 
Nothing could more reflect upon their crude con- 
ception of judicial procedure than the proposi- 
tion of a recall of judicial decisions. Social 
changes are not to be successfully made by a 
cataclysm, unless present conditions are as 
oppressive as those which caused the French Revo- 
lution. To be valuable they must come slowly and 
with deliberation. They are to be brought about 
by discriminating legislation proceeding on prac- 
tical lines and construed by courts having an atti- 
tude of favor to the object in view. 

I have spoken little to my purpose if I have not 



236 POPULAR GOVERNMENT 

made clear the necessity for broadening much the 
quaHfication of the general body of our judiciary 
to meet the important and responsible require- 
ments that the present crisis in our community 
has thrust upon them. Their coming duties call 
for a basic knowledge of general and sociological 
jurisprudence, an intimate familiarity mth the 
law as a science, and with its history, an ability 
to distinguish in it the fundamental from the 
casual, and constructive talent to enable them to 
reconcile the practical aspirations of social 
reformers with the priceless lessons of experience 
from the history of government and of law in 
practical operation. How can this be brought 
about? Only by broadening the knowledge and 
studies of the members of the legal profession. It 
is they who make the judges, who contribute to 
their education, and who help them to just, broad 
and safe conclusions. 

What we lawyers need now is to rouse our pro- 
fession to speak out. We must be heard in defense 
of the good there is in our present society and in 
pointing out the social injury which a retrograde 
step may involve. But we must also put ourselves 
more in touch with the present thinking of the 
people who are being led in foolish paths. We 
must study sociological jurisprudence. We must 
be able to understand the attitude of the socio- 



IMPORTANCE OF STANDARDS 237 

logical reformer. We must show our sympathy 
with every sincere effort to better things. What 
the people need in respect to this matter is light, 
and the profession engaged in administering law, 
and in promoting just judicial conclusions, must 
contribute their valuable assistance in giving it. 
In so far as the conditions in society are new, in 
so far as its needs are different from what they 
seemed to be at the time of the adoption of the 
Constitution, or as they were recognized under 
the common law, embodied in a century of our 
judicial decisions, they should be studied by the 
profession. We should seek to know exactly what 
are the conditions that are sought to be remedied. 
We should be willing to meet them in seeking to 
remedy every condition that is possible to remedy 
consistently with the maintenance of those prin- 
ciples that are essential to the pursuit of material 
progress and the consequent attainment of spirit- 
ual progress in society and to permanent popular 
and peaceful government of law. 

The working of the problem presented is not 
the task of a year. It may require a generation 
or more. We must prepare our successors, the 
future American Bar, to meet the demand. 

Every law school should require those who are 
to be admitted to its halls to have a general edu- 
cation furnishing a sufficiently broad foundation 



238 POPULAR GOVERNMENT 

upon which to base a thorough legal education. 
That general education ought to include a study 
of economics and a study of sociology, and the 
curriculum of every law school should include a 
close study of the science of general and socio- 
logical jurisprudence as a basis for the study of 
the various branches of our law; and this raising 
of law school standards should meet a sympa- 
thetic response from Supreme Courts in require- 
ments for admission to the Bar. Then the mem- 
bers of the Bar will come to the discussion of 
social remedies in courts, in the halls of Congress 
and in legislatures, and in appeals to the people, 
properly equipped, and will bring the contro- 
versy down to a practical issue and the fight can 
be fought out on a common ground. The valu- 
able lessons of the past will be given proper 
weight and real and enduring social progress will 
be attained. We shall avoid, then, radical and 
impractical changes in law and government by 
which we might easily lose what we have gained 
in the struggle of mankind for better things. 



"To Insure Domestic Teanquilmty, Provide 
FOR THE Common Defense" 

The next two purposes stated in the preamble 
for ordaining and establishing the Constitution 
were to "insure domestic tranquillity" and "pro- 
vide for the common defense." 

The Constitution gives to Congress the power 
to provide for calling forth the miHtia to execute 
the laws of the Union, suppress insurrections and 
repel invasions; to raise and support armies; to 
proidde and maintain a navy. 

Power is vested in the President, on apphca- 
tion of the legislature of a State, or of the execu- 
tive (when the legislature can not be convened) to 
protect it against domestic violence. 

The President has direction of the foreign 
policy of the country, except when treaties are to 
be made, in which case the Senate, by a vote of 
two-thirds present, must concur in them, and 
except when foreign war is to be the policy, when 
Congress must declare it. 

I shall devote this chapter to the consideration 
of the necessity for the maintenance of a national 
militia, an army and navy, and to the questions 
arising in respect to them, together with the possi- 



^f'" 
f" 



240 POPULAR GOVERNMENT 

bility of avoiding war and securing peace and thus 
maintaining a common defense through our treaty- 
making power. 

Save in the District of Columbia, and in the 
territories, under the exclusive jurisdiction of the 
Federal Government, domestic tranquillity is 
secured by the State authorities, and this by the 
municipal police in cities, by the sheriffs and con- 
stables in counties, and if these local arms are 
insufficient, by the State miHtia, acting under the 
direction of the Governor. The State authorities, 
as we have seen, may, however, invoke the assist- 
ance of the President of the United States through 
a formal notice to him that domestic ^dolence 
prevails to such an extent that with their avail- 
able forces they can not suppress it. Thereupon, 
the President of the United States in the discharge 
of his duty should order the army of the United 
States to the assistance of the State authorities 
in the maintenance of order. 

But it is not essential for the use of the army 
of the United States to maintain order anywhere 
within the United States that the Governor or the 
legislature of the State should call upon the 
President for assistance. There is "a peace of the 
state," and there is "a peace of the United 
States." Obstruction to the laws of the State by 
force "sdolates the peace of that State. Obstruc- 



"TO INSURE TRANQUILLITY" 241 

tion by force to the laws of the United States 
violates the peace of the United States, and the 
Supreme Court has specifically declared, in a 
number of cases, that there is a peace of the 
United States which it is the business of the 
President to preserve by all the force at his dis- 
posal. For instance, it is the duty of the Govern- 
ment, under the Constitution and the laws of the 
United States passed in accordance therewith, to 
circulate the mails. Now, if those mails are 
obstructed by violence, it is the duty of the Presi- 
dent, by the United States marshal and his depu- 
ties, if they have sufficient force, to clear the 
obstructions and see to it that the agents of the 
Government in the mail service have freedom to 
discharge their functions. The same thing is true 
as to the enforcement of the orders and judgments 
of the United States Courts. Should the marshals 
and their deputies and the posse comitatus, whom 
the marshal is able to summon, be insufficient, then 
the President, pursuing certain preliminaries 
required under the statute, may direct the army 
to preserve the peace of the United States by 
enforcing the law of the United States. 

This last phase of the Federal power was more 
often in evidence when there were Federal election 
laws regulating the holding of Congressional elec- 
tions. It then became the duty of the President 



242 POPULAR GOVERNMENT 

to direct the marshals to assist in the enforcement 
of those laws whenever their operation was 
obstructed, and even the army was at times called 
in for this purpose, until there was a rider on an 
appropriation bill, passed in the days of Presi- 
dent Hayes, by which it was forbidden to use the 
army as a posse comitatus. I have always thought 
that this was a congressional limitation upon 
the executive power of doubtful constitutional 
validity. 

This suggests the controversy between Presi- 
dent Cleveland and Governor Altgeld as to the 
President's right to send troops to Chicago at the 
time of the so-called Debs strike and attempted 
rebellion against organized government. There 
the orders of the Federal Courts enjoining inter- 
ference by large bodies of men with the operation 
of railways, and the obstruction of mails, were held 
for naught and were violently resisted by rioters, 
and President Cleveland, under the advice of 
Attorney-General Olney, and through the orders 
of Lieutenant-General Schofield, sent out Federal 
troops to Chicago under General Miles to see to it 
that these obstructions ceased. They were sent to 
preserve not the peace of Illinois but the peace of 
the United States. Governor Altgeld insisted that 
he had control of the situation, and that it was a 
usurpation on the part of President Cleveland to 



-TO INSURE TRANQUILLITY" 243 

attempt to send Federal forces into his State. 
President Cleveland declined to recognize Gov- 
ernor Altgeld's right to object to his sending the 
troops of the Government in the United States 
wherever he might choose. He told the Governor 
that he did not have to wait for a request by the 
legislature of Hlinois or by Governor Altgeld 
before he could, by use of the army, suppress 
unlawful obstruction to the laws of the United 
States or the process of its Courts. 

The injunctions issued in the case against Debs 
were sustained as valid by the Supreme Court of 
the United States in a habeas corpus suit brought 
to release Debs from his imprisonment for con- 
tempt for defying those injunctions. In that case 
the Supreme Court, by unanimous judgment, left 
no doubt whatever that President Cleveland was 
entirely right in his action and that Governor 
Altgeld was much too narrow in his view of the 
power of the Federal Government in such a case. 
The army of the United States is theoreticaUy 
composed of three branches. First, there is the 
regular army of the United States. That to-day 
can not by law exceed 100,000 men, and its num- 
ber is fixed by executive order of the President. 
PracticaUy Congress must consent to the number 
because it appropriates money for the pay of the 
army. Its exact number, exclusive of about 4,000 



244 POPULAR GOVERNMENT 

Philippine Scouts, on June 30, 1915, was 4i,665 
officers and 75,321 men. This is an army raised 
by voluntary enlistment, in which the term of 
enlistment is for seven years, with an obligation 
on the part of the enlisted man to serve four years 
with the colors and three years in the reserve, 
during which in time of exigency he may be sum- 
moned to active service. Second, in addition to 
the regular army of the United States, the 
statutes provide for a so-called volunteer army of 
the United States, an army raised only in time of 
war. It was the volunteer army that made up the 
bulk of our great army during the Civil War. 
Strictly speaking, this is no more a volunteer 
army than is the regular army, because both are 
the result of voluntary enhstments, but as the 
volunteer army is only used in time of war and 
the term is generally for a period limited by the 
end of the war, it is supposed to embrace those 
who but for the war would not enlist, while the 
men of the regular army enlisted in time of peace 
are considered professional or regular soldiers. 

The present volunteer law is an old one, quite 
inadequate to modem needs and especially defec- 
tive in its provision that the officers of the volun- 
teer army shall be appointed by the State Gover- 
nors rather than by the President of the United 
States. When it became necessary to raise addi- 



"TO INSURE TRANQUILLITY" 245 

tional troops to secure tranquillity in the Philip- 
pine Islands, and a volunteer army of 30,000 men 
had to be raised, a special law was passed which 
placed the appointing power in the hands of the 
President. The men under this special act were 
enlisted for two years, and at the end of the two 
years, the regiments were as well trained as those 
of the regular army; but the special law expired 
by its own limitation, and now the old law remains 
in force. Ejffort after effort has been made to 
pass a new one, which would be ready for use 
should war threaten, so that the Executive, without 
waiting for new legislation, might at once raise a 
volunteer force. But the lingering States' rights 
prejudice in Congress and the apparent indis- 
position to part with the State political power, 
which the transfer of the appointment of officers in 
the volunteer force from the Governors to the 
President would involve, have thus far blocked the 
adoption of the new law. 

Colonel Upton, an officer of the United States 
Army, and a great military authority, who wrote 
a very valuable book on the mihtary policy of the 
United States, denounced the feature of our policy 
by which the State authorities are given power to 
appoint officers in the volunteer force as produc- 
ing some of the most lamentable results in our 
military campaigns. 



246 POPULAR GOVERNMENT 

The third national force is the militia, called 
the National Guard. The miHtia is a mihtarj 
force raised under the State laws which the 
National Constitution recognizes. It gives Con- 
gress authority to aid in the organization of the 
militia, and to provide rules for its discipline and 
drill. The President is its Commander-in-Chief 
when it is acting under his call. Its function as a 
national force is limited to the resistance to inva- 
sions of the national territory and it could not be 
employed as a national force beyond the limits of 
the United States in a foreign expedition. 

This limit upon the national use of the National 
Guard was made prominent in the Spanish War 
when the question arose as to whether the famous 
Seventh Regiment of New York should go to 
Cuba. It very properly declined to tender its 
organization for foreign service because the con- 
tract of enlistment by its men embraced only 
domestic service ; but every one of its members was 
given full permission to enter any regular or 
volunteer regiment for the war and many of them 
went. 

The chief function and the most frequent use 
of the miHtia are in the maintenance of order in 
the State under whose authority it is organized. 
Unlike the volunteer army of the United States, 
its officers should, therefore, be appointed by the 



"TO INSURE TRANQUILLITY" 247 

Governor, and so the Federal Constitution 
requires. 

The people of the United States on the whole 
are a shrewd, enterprising and provident people, 
but they have not proven it by their military 
poHcy. Any one who is at all interested may have 
the utter foolishness and stupidity of that policy 
shown to them as clearly as the light of day by 
reading what I have already referred to. Colonel 
Upton's "History of the Military Policy of the 
United States." He shows from the beginning 
how, through the interference of political theories 
and the variation of different administrations, we 
have been ludicrously unprepared for wars into 
which we entered with all the confidence and non- 
chalance of a nation with a thoroughly equipped 
and adequate army. In the War of 1812 our 
regular army amounted to 6,000 troops. There 
were 5,000 British troops in Canada. Had we had 
an army of 25,000 at the time, we could have taken 
Canada without difficulty. Instead of that we 
suffered a number of humiliating defeats in the 
outset of the war and, before we finished it, we had 
upon paper enlisted in the army and paid for at 
one time or at another 500,000 troops. We have 
expended $50,000,000 in pensions paid for service 
in that war. The same thing is true of all of our 
wars, and Congress continues to be as reluctant 



248 POPULAR GOVERNMENT 

as possible to maintain an adequate army to 
accomplish the legitimate purposes of such a 
force. So far as our military policy is concerned, 
it would seem as if the maxim that "The Lord 
looks after children and drunken men" ought to 
be extended to the United States, for by hook or 
crook, through mistakes of the enemy or through 
luck and by the expenditure of far greater treas- 
ure and many more lives than were necessary, we 
have generally been successful. This result is 
always used as an argument to resist a reasonable 
addition to the army and to incurring reasonable 
expense in time of peace that we may be better 
prepared in time of war. Men rise in their seats 
in Congress and pay deserved tributes to the 
bravery and efficiency of that volunteer army of 
half a million men who marched down Pennsyl- 
vania Avenue in the spring of ^65 after the Civil 
War, and then point to them as a proof that we 
could organize an army of citizen soldiers in any 
emergency entirely adequate to meet foreign 
attack. They seem oblivious to the fact that it 
took three solid years of the hardest kind of prac- 
tical training in actual warfare to make those 
citizen soldiers what they were — the best-trained 
army that ever trod in shoe leather. No standing 
army ever had a better training than they had. 
To use them as evidence that citizen soldiery can 



"TO INSURE TRANQUILLITY" 249 

be whipped into an effective military force in the 
time in which effective and well-equipped Euro- 
pean armies could be mobilized for action is to 
fly in the face of all reason and experience. Of 
course, our separation by oceans from possible 
enemies gives us the greatest good reason for 
avoiding the burdens and inconveniences of a large 
standing army, but we ought not for that reason 
to be helpless. We are very much nearer to 
Europe and Asia by many days than we were in 
Washington's time. 

We are now policing the Philippines with about 
12,000 of our troops. We are policing Hawaii 
with about 2,500 of our troops. We shall police 
the Isthmus with perhaps 3,000 of our troops. A 
force is necessary in Alaska, and in addition to 
these territories, we have between the oceans forty- 
eight States with a population of 90,000,000 
people. 

You may remember the controversy between 
Great Britain and this country over the boundary 
between Venezuela and British Guiana when Presi- 
dent Cleveland demanded that the issue be arbi- 
trated and Secretary Olney as Secretary of State 
asserted with startling abruptness the Monroe 
Doctrine and the intention of the Government of 
the United States to enforce it. The only other 
time when we came nearer to a breach with Great 



250 POPULAR GOVERNMENT 

Britain in the century of peace that has followed 
the War of 1812 was during the Civil War over 
the Trent affair. When we were taking this 
defiant position on the Venezuelan question, there 
was not on our whole coast a single fortification 
that could resist the guns of a modem navy. The 
then EngHsh fleet could have sailed into every 
important port of the United States and sub- 
jected every coast city to a ransom and been 
exposed to no danger except from one modern 
gun at Sandy Hook. The result of this informing 
experience was that the nation proceeded to 
defend itself by coastwise fortifications. And 
now as against a naval invasion, the country 
is very heavily fortified, but the guns of these 
fortifications need a force of some 40,000 men in 
order that every gun may be equipped with one 
complement of men. 

We have spent upon these fortifications much 
more than $100,000,000. We are also fortifying 
the Philippine Islands by making Corregidor 
Island, which guards the entrance to Manila Bay, 
impregnable. We are fortifying Honolulu as a 
naval base and the defenses there will soon be 
formidable. We are fortifying the entrances to 
the Panama Canal and they soon will be swept by 
our guns in such a way that no naval attack can 
be made upon the canal. It is true that the coast 



"TO INSURE TRANQUILLITY" 251 

fortifications in the United States proper are con- 
structed with a view to resisting only a sea attack 
by navy and not a land attack by an army which 
might disembark at an unprotected point some- 
where and march around to take the forts. This 
was a poHcy dehberately adopted in Mr. Cleve- 
land's time, because it was not supposed that the 
prospect of the landing of a miUtary force so far 
away from Europe, or so far away from Asia was 
a danger to be apprehended; but there is now 
being agitated the question whether this was not 
an error, and whether the fortifications ought not 
now to be supplemented in such a way that 
resistance could be made to land forces. 

To-day the coast artillery, who are coast 
defense men, embrace upwards of 24,000 men. If 
you take this number from the 75,000 men we 
have in our army to-day, it leaves not more than 
51,000 as a mobile army, and if you take from 
that number the 17,000 men that we use in the 
Philippines, Alaska, Hawaii and on the Isthmus 
of Panama, it leaves us in this country as the 
mobile army consisting of infantry, cavalry and 
Hght artiUery, but 34,000 men. It is this force, 
amounting to about one in every 2,600 persons, 
that constitutes our regular army for use in the 
insurance of domestic tranquillity and the common 
defense of 90,000,000 people between the oceans. 



252 POPULAR GOVERNMENT 

This is not adequate for present legitimate 
purposes. If the mobile army in the United States 
were increased to 65,000, it would not be an exces- 
sive provision. That would require an addition to 
the army of 36,000. The passage of a proper 
volunteer law is a crying need. I am glad to say 
that the law with respect to the militia is a modern 
law and has been improved by amendment from 
time to time, and that the Federal Government is 
intelligently spending money and exercising dis- 
ciplinary authority to make a militia of 100,000 
that could be called into requisition in time of a 
war of defense. 

One of the great difficulties that Presidents and 
Secretaries of War now have in a proper manage- 
ment of the War Department is in the economical 
and strategical housing of the troops in the 
United States proper. An army of the size of ours 
should be stationed at posts properly distributed 
with a view to rapid concentration anywhere, but 
few enough in number and large enough in capa- 
city to permit the assembling at each post under 
general officers, a large enough body of troops to 
give the officers and men experience in drilling and 
maneuvering with brigades and divisions instead 
of with companies and battalions. In the Indian 
Wars and for other reasons, the posts were 
increased in number properly to meet the then 



"TO INSURE TRANQUILLITY" 252 

strategical necessities. Now four-fifths of them 
ought to be abandoned to carry out the plan suited 
to our present needs, and this is resisted for polit- 
ical reasons by members of Congress and the 
Senate. A military post helps the neighborhood 
because much government money is spent there 
and the whole military policy of the United States 
has to suffer from this political cause. 

We may well take pride in such an army as we 
have, for we have a body of army officers that 
are brave, efficient and skilled, lacking in experi- 
ence possibly in the mobilization and conduct of 
great bodies of troops but as well educated in 
military science as any officers in the world, and 
as full of expedients and as adaptable to circum- 
stances as any I know. We now have a general 
staff of army experts to advise the Secretary of 
War. It is impersonal and it insures the con- 
tinuity of military policy so far as the War De- 
partment is concerned which makes for good. 
Nevertheless, there is much to be done in order to 
fit our army for its proper place in the discharge 
of its constitutional functions and as a nucleus 
and skeleton for the organization of an adequate 
force, should war come upon us. 

Now with respect to the navy, I only have to 
say that until within recent times we had a navy 
that made us third in the weight of our armament 



254 POPULAR GOVERNMENT 

and possibly second to Great Britain, but that 
now, with the number of keels laid down by other 
nations for new vessels, our rank is gradually 
being reduced. The laying down of two battle- 
ships a year would possibly have enabled us to 
keep a better position, but the failure of the last 
Congress and of this one to give us more than one 
battleship affects our future armament and of 
course our naval prestige. Farragut said that 
the best defense was well-directed fire against the 
enemy, and by the same reasoning a navy which 
is efficient to make your enemy fear its attack is 
one of the surest means of keeping your enemy's 
force out of your country. 

The great objection to the maintenance of such 
an army and navy, as I have suggested, is the 
burden of its cost. Two hundred and fifty million 
dollars a year are necessary for this purpose, and 
this does not include the $150,000,000 or more 
that are devoted to pensions for those who were 
injured in the Civil War. Those pensions are not 
properly a part of the expense of the present mili- 
tary system of the United States, and ought not 
to play a part in determining the expenditures for 
our present army and navy. They are due to our 
not having had an adequate army ready in the 
past. Certain it is that the larger army and navy 
we maintain, the less in size will be our pension list 



"TO INSURE TRANQUILLITY" ^55 

after another war, should we have one, because 
the more adequate provision we make for a prompt 
and active campaign, the less men we shall enlist 
and the less their loss of life and limb. 

When we compare our expenditures with those 
of the armies abroad, we see that the maintenance 
of a navy and an army is much more expensive to 
us per man than it is to the nations abroad. They 
have a conscription system while we depend on 
voluntary enHstment. We have to pay in money 
and support a living wage. They compel service 
practically without a wage in money. I have not 
the comparative figures for the cost of the Euro- 
pean armies and our own this year, but in 1906 
this statement which I made as Secretary of War 
was true: 

"Our regular army to-day amounts in effective 
force to about 60,000 men, and it costs us in round 
numbers about $72,000,000 to sustain our mili- 
tary estabhshment. France maintains an army 
on the active list of 546,000 men, and it costs her 
$133,000,000. Germany maintains an army 
which has upon its active list 640,000 men, and it 
costs her $144,000,000 a year to maintain it. In 
other words, France has an army about nine times 
the size of ours which it costs her substantially less 
than twice the sum to maintain, while Germany 



256 POPULAR GOVERNMENT 

has an army more than ten times as large which it 
costs her just about double our sum to maintain." 

But you may say all this has a very military 
and warlike sound, coming from a man whose voice 
has been supposed to be for international peace, 
and if you charge me with inconsistency in this, 
you will only be repeating what has often been 
said against me for my advocacy of a more effec- 
tive army and the maintenance of an adequate 
navy. 

I am strongly in favor of bringing about a con- 
dition of securing international peace in which 
armies and navies may either be dispensed with or 
be maintained at a minimum size and cost; but I 
am not in favor of putting my country at a dis- 
advantage by assuming a condition in respect to 
international peace that does not now exist and I 
am opposed to injuring the useful prestige and 
weight of her international influence which, under 
present conditions, an adequate army and an ade- 
quate navy are required to maintain. 

I am as strongly in favor as any one can be of 
prosecuting every plan that will make war less 
and less probable. I believe there are practical 
plans that can accomplish much in this direction. 
I do not believe the plan of common disarmament 
is a practical plan. It has been tried and has 
failed. All Europe is an armed camp, and every 



"TO INSURE TRANQUILLITY" 257 

time that any nation adds to its armament, the 
others with whom conflict is possible add to their 
respective armaments. Nothing but bankruptcy 
is going to stop these additions, and bankruptcy 
does not come as soon as we might properly 
welcome it. 

The only thing that will bring about a dis- 
armament is the certainty on the part of the 
nations, whose disarmament is important, that 
by some other means than war, they can secure the 
just and eff^ective settlement of disputed questions 
that must arise between nations. When such a 
method is established and the nations are certain 
that it will accomplish its purpose, then they 
ought to have no motive for the maintenance of 
anything but a force sufficient to contribute to an 
international police force to carry out the decrees 
of the international tribunals in which interna- 
tional questions are settled. 

I am an optimist, but I am not a dreamer, or an 
insane enthusiast on the subject of international 
peace. I realize the valuable uses to which wars 
have been put in the past and the progress that 
has been made through war in the civilization of 
the world. Resistance to tyrannical authority 
and despotism and the assertion of freedom have 
been possible only by revolution and the use of an 
armed force. Without such armed force, freedom 



258 POPULAR GOVERNMENT 

would not have been won and beneficent govern- 
ments would not have been estabHshed. 

We can count on peace as a result of the estab- 
lishment of international tribunals only in as far 
as the world is, or shall be, divided into nations 
and countries under well-ordered and just govern- 
ments which can enforce peace within their own 
respective borders and prevent war of an inter- 
necine or civil character. As between nations, 
with proper authority established within their own 
borders, supported by the moral strength of their 
own peoples, we can assume a proper basis for the 
establishment of such international agreements as 
may ultimately prevent international war. Every 
treaty that is made between two nations of this 
established character, for the settlement of differ- 
ences between them, by reference to an impartial 
tribunal, is a step toward international peace. 

But there is a long way before us in the accom- 
plishment of our purposes upon this head. And 
meantime our country is occasionally subject to 
the dangers that arise from the hostility of other 
countries. Since we have been a nation we have 
been at war for one-fourth of the time, and, there- 
fore, those who are responsible for the policy of 
our Government have no right to assume that the 
possibility of future wars has altogether ceased. 

And this leads me to the question of the forti- 



"TO INSURE TRANQUILLITY" 259 

fication of the Panama Canal. We built the 
Panama Canal to make another great avenue of 
trade for the world and to shorten the passage 
around Cape Horn and through the Straits of 
Magellan; but we also built it for our own 
national profit, first, in bringing the Pacific and 
Atlantic Coasts nearer together for the coastwise 
trade, and second, in developing the strategic 
efficiency of our navy in protection of our country, 
by offering a means of transferring the navy 
quickly from one seaboard to the other. 

The proposition to neutralize the canal so that 
it shall always be open to every nation, whether 
we are at war with that nation or not, is to 
deprive us of that one very great advantage in 
using our navy to which I have referred, because 
while we could transfer our navy from one side to 
the other quickly through the canal, our enemy 
would enjoy the same strategical opportunity. 
Thus we would share with our enemy the advan- 
tage which we had planned and so lose it. 

More than this, the canal is a very valuable 
property and the locks and machinery may be 
easily destroyed. Treaties of neutralization 
would not prevent a lawless nation from violating 
them and rendering useless to us the canal at a 
time of emergency when it is most necessary. We 
have the right to fortify the canal, given us by 



260 POPULAR GOVERNMENT 

Panama and acquiesced in by England, and there 
is not the slightest reason why we should not 
insure ourselves by fortifications against any 
injury which other nations may do. 

The presence of fortifications does not lead us 
into war, and we don't have to use them unless 
there is some hostile threat against the canal. But 
it seems to me that we would be foolish in the 
extreme and utterly wanting in national pru- 
dence if we did not make it certain by our prepa- 
rations that no nation can injure that work 
which has cost us $400,000,000 and which in time 
of national stress we shall certainly need. This 
is not at all inconsistent with the sincere desire 
never to have a war and to bring about peace as 
quickly as possible when we do have a war. It 
does not invite or approve a war any more than 
provision for a water supply invites or approves 
a conflagration. It is not at all inconsistent with 
the advocacy of treaties of arbitration and of 
general arbitration with all countries until those 
treaties are signed and until they embrace all 
nations of the earth, so that we can count on their 
effectiveness to prevent war. 

We are thus naturally brought to the final topic 
of this chapter, and that is the treaties of general 
arbitration. We negotiated two of those treaties, 
one with France and the other with England. We 



"TO INSURE TRANQUILLITY" 261 

then had so-called arbitration treaties with nearly 
all the nations of the world, but they excepted 
from their operation all questions of national 
honor or vital interest, and they provided that 
before they could become effective the Executive 
and the Senate of this country should make a 
special agreement with the country with whom we 
had the controversy for the special submission of 
the issues to the peace tribunal. These treaties, 
therefore, are practically nothing more than a 
general statement that we are in favor of arbi- 
tration of an issue when we agree to arbitrate 
it or, in other words, when we think it will be 
to our advantage to arbitrate it. Questions of 
national honor and of vital interest include all 
those questions, the agitation of which is likely to 
lead to war, and, therefore, arbitration treaties 
which except such questions may be said to be 
treaties for the settlement of those questions that 
never would involve war in their settlement any- 
how. This clearly shows that they are not 
adapted at all to the purpose of preventing war. 
The two treaties of peace we negotiated with 
France and Great Britain, however, took a decided 
step forward. First, they contained a formal 
agreement to submit either to The Hague, or to 
some other tribunal, all questions of difference 
arising between the two countries of a justiciable 



262 POPULAR GOVERNMENT 

character, and then they proceeded to define what 
justiciable was by saying that it meant all ques- 
tions that could be settled on principles of law or 
equity. That certainly included questions of vital 
interest and national honor, because they could 
both be settled on such principles. Under the 
second section, whenever a difference arose, 
whether it was justiciable or not, of what- 
ever kind, and negotiation could not settle it, 
either party might delay final action for a year 
by demanding an investigation of the difference 
by a commission consisting of three persons 
selected by one government and three persons by 
the other to investigate and make a recommenda- 
tion. If five of the commissioners decided that the 
question was justiciable, in accordance with the 
treaty, then both nations were bound to submit it 
to its arbitration. It seems to me that the nego- 
tiation of such a treaty between France and the 
United States, and between England and the 
United States, and between the other nations of 
Europe and the United States, would finalty lead 
to the negotiation of such treaties between Euro- 
pean countries themselves, and ultimately that we 
might have an interlacing and interlocking series 
of treaties comprehending so many countries as to 
lead to the formation of an international court of 
judicature. Before this court, any nation being 



"TO INSURE TRANQUILLITY" 263 

aggrieved might bring any other nation to answer 
its complaint, the case might be heard upon 
proper pleadings and the judgment of the court 
might be enforced either through the public 
opinion of the nations, or, if that failed, through 
an international poHce force. This may seem 
an ambitious project and, as I have said, it is 
essential to its carrying out that it be made be- 
tween well-ordered governments which maintain 
peace at home and within their own borders, and 
which are sufficiently responsive to international 
public opinion to fear its criticism and yield to its 
demands. However remote such a court may be, 
eadi treaty of this kind made would diminish the 
chances of war, and when the system embraced aU 
governments, it would certainly make them more 
willing to reduce armament and rely upon the 
international court of judicature. 

The treaties were defeated in the Senate. They 
were defeated by amendments. One amendment 
put in so many saving clauses as to the causes 
which were to be arbitrated that it hardly seemed 
worth while to offer such a truncated and nar- 
rowed clause for reconsideration by the countries 
with whom we had negotiated the treaties. 

The Senators from the South were very sensitive 
lest some of the repudiated debts of the Southern 
States should be made the basis of international 



264 POPULAR GOVERNMENT 

arbitration by bondholders living in other coun- 
tries. If these debts were just, they ought to be 
paid. If not, the tribunal would probably so 
decide. As a matter of fact, however, the treaties 
would not have included them because the lan- 
guage of the treaties only covered issues arising in 
the future, not past questions as these were. 

The second and the chief objection to the treaty 
was that under its terms not only the Executive 
but the Senate was bound to arbitrate any dif- 
ference which should be held, by five out of six of 
the commission established under the second clause, 
to be a justiciable one and therefore subject to 
arbitration. In other words, the Senate insisted 
that it could not agree to abide the decision of an 
international tribunal as to whether a treaty 
which it had entered into, bound it to submit to 
arbitration a certain question. 

I never have been able to understand the force 
and weight of this argument. The Senate is not 
any more limited in its powers of agreeing to a 
treaty than the Executive. Both represent the 
Government. Now to say that this Government 
may not agree in advance with another govern- 
ment to arbitrate any of a class of questions that 
arises in the future, and to submit the question 
whether that issue is within the description of 
arbitrable questions as defined in the treaty, is to 



"TO INSURE TRANQUILLITY" 265 

say that this Government has not any right to 
agree to do anything in the future. Such a Hmi- 
tation upon the treaty-making power of the 
Government and upon the treaty-making confirma- 
tion of the Senate is a hmitation which would pre- 
vent this Government from entering into any 
useful arbitration treaty. It grows out of an 
exalted and unfounded idea by those who have for 
a long time been in the Senate, of the sacred 
nature of the Senate's function in treaty making 
as distinguished from the function of the Execu- 
tive in making the same treaty which it has to con- 
firm. A treaty binds the Government to some 
future action or else it is not a treaty at all. If a 
branch and agency of government has the treaty- 
making power, it has the right to bind the Govern- 
ment to something, and one of the commonest 
things that history has frequently illustrated as 
the subject of agreement is the submission of the 
construction of a treaty to an impartial tribunal. 
That is all this was. It was an agreement to submit 
to a tribunal the question whether the word "justi- 
ciable," as defined in the treaty, included an issue 
when that issue should arise. 

But the treaties were defeated. Sometimes I 
have been very much disappointed, because I 
thought that their defeat was a retrograde step. 
Here we had two countries willing to go into a 



266 POPULAR GOVERNMENT 

very comprehensive peace treaty with us of gen- 
eral arbitration, and after they were made, the 
Senate defeated the plan. If those nations could 
afford to make such treaties, why couldn't we do 
so? Have we any interests that could be prejudi- 
cially affected by such treaties more important to 
us than their interests could be to them? Is not 
the real objection to be found in the feeling on the 
part of many Senators that they are only in favor 
of arbitration when we can win and not when we 
may lose ? That is not sincere support of the prin- 
ciple of arbitration. 

Still I think the making of the general arbitra- 
tion treaties and the discussion of them before the 
people have been useful, and that sometime in the 
future some other Executive may have the good 
fortune to negotiate another such treaty and to 
find a Senate not so sensitive as to its prerogative. 



INDEX 

Acton, Lord, quoted, 67-68, 68-70. 

Adams, Samuel, of Massachusetts, opposed Constitution, 127. 

Admiralty Court, Federal, granted power over inland 
waters, 138-139. 

Admission to the Bar, — ^unfit committee on, '330-221; — 
importance of proper standards for, 221. 

Alaska, policed with our troops, 249. 

Altgeld, Governor, controversy with President Cleveland 
over Debs strike, 242-243. 

Amendments to Constitution, — first eight equal to Bill of 
Rights, 127; — Fourteenth, enforced personal rights, 128; 
— Ninth, Tenth, Eleventh explained, 128-129; — checks 
upon, imposed to secure full information on the part 
of the people, 167; — constitutional, 178-180. 

Appointment of judges, — ^more successful than election, 
190-192;— in practice, 195-197. 

Appomattox, decided the States' rights problem, 137. 

Archbald, Judge, cause of impeachment of, 208. 

Arizona, — obtained recall of judges, 168; — message to Con- 
gress vetoing, bill quoted, 168-174. 

Army, — ^need for national, 239; — ^when called upon to act, 
240-241; — ^limitation on its use as posse comitatus of 
doubtful validity, 242; — three branches of, 243; — size 
of regular, 243; — volunteer, 244; — ^weakness of, at open- 
ing of War of 1812, 247; — efficiency of, in Civil War, 
248-249 ;— efficiency of, 253;— cost of, 255-256. 

Artillery, coast, statistics of, 251. 

Bailey, Senator, — against new system of direct government, 
72-73, 77 ; — answer to his argument that State legislation 
by referendum destroys its republican form, 77-78. 

Ballot, short, logic of its advocacy inconsistent with general 
referendum and within election of judges, 52-53. 

Banking. See Currency. 



268 INDEX 

Bar, — ^importance of, 216 ; college education for admission to, 
218-319; — question of admission to, given to Supreme 
Courts, 220; — ^misconduct among Committees on admis- 
sion to, 220-221; — ^importance of, to Bench, 221; — ^mem- 
bers of, should be equipped to discuss economic and 
social problems, 238. 

Bar Associations working for valuable judicial reform, 227. 

Bench, great importance of Bar to, 221. 

Bill of Rights, 65; contained in first eight Constitutional 
Amendments, 128. 

Bosses, — ^until recently a controlling element, 97; — ^people 
turned against, 98; — corruption of, 98-99; — power of, at 
local conventions, 114-115; — ^must be ousted in certain 
localities by direct primary, 120-121. 

Buchtel, Governor, quoted on initiative and referendum, 
55-56. 

Burke, Edmund, opinion of, regarding duty of Representa- 
tive, 26-29. 

Calhoun,— considered Story's views heretical, 7; — follower of 
Jefferson, 134; — ^tried to stop collection of customs in 
South Carolina, 134. 

California Constitution amended by a small vote, 44-45. 

Chase, Mr. Justice, tried for impeachment, 209. 

Child labor legislation invalid by Congress except as to 
District of Columbia, 142-143. 

Chisholm vs. Georgia, case of, influenced Eleventh Constitu- 
tional Amendment, 129. 

Cincinnati, anecdote of 5th Ward in, 107-109. 

Circuit Court of Appeals, created in 1892, 158. 

Civil War, efficiency of our army in, 248-249. 

Clerks, judges, should be appointed by the executive, 
212-213. 

Cleveland, President, — controversy with Governor Altgeld 
over Debs strike, 242-243; — would have been recalled, 
84; — demanded arbitration over Venezuela boundary, 
249. 



INDEX 269 

Cleveland, Ohio, initiative and referendum, elections in, 58. 

Clinton of New York, opposed Constitution, 137. 

Coast artillery, statistics of, 351. 

Cohens vs. Virginia, decided by Marshall, 133. 

Coke, Lord Chief Justice, of England, opinion that certain 
Acts of Parliament were void, 163. 

"Collectivist" legislation, — ^no objection to, 93; — ^increased 
functions of government, 339. 

College education for Bar, 318-319. 

Colonies, Thirteen, qualifications for voting in, 13-13. 

Colorado, initiative and referendum in, 55-58. 

Commercial spirit, 31; — Andrew D. White on, 33. 

Committees for admission to Bar, corruption among, 330-331. 

Compulsory voting, 18, 31; — attempted in Switzerland, and 
in Belgium, 19. 

Congress, — has complete power over expenditure of people's 
money, but taxation subject to Supreme Court, 150-151; 
— cannot retire judges, 159; — apt to infringe on Con- 
stitution, 164-165; — has grudged increase of salaries to 
judges, 199-300; — should enact a proper fee bill for 
Federal Courts, 313-314;— by the Constitution has 
certain military powers, 339 ;— appropriates money for 
pay of army, 343; — reluctant to maintain adequate 
army, 347-348; — insistence on too many army posts, 
military posts, 353; — failure of, to build two new 
battleships annually, 354. 

Connecticut, qualifications for voting in colony of, 13. 

Constitution of United States, — ^preamble to, 4-5; — Lord 
Acton quoted on, 67-68, 68-70; — Article 4, Section 4, 
quoted, 73-73; — first purpose of preamble; to form a 
more perfect union, 133; — Article 4, Section 3, quoted, 
135 ; — declares fundamental law and imposes limitations, 
163; — infringed by Legislatures and Congress, 164-165; 
— remarkable for division of power, 186; — gives Con- 
gress certain military powers, 339; — amendment of, 
178-180. 



270 INDEX 

Constitutional Convention, — ^members, how chosen, 11-14; — 
behind closed doors, 126. 

Conservation, national, — need for, 145-146; — arguments for 
and against, 146-154. 

Conscience, National, political, awakened, 87-89. 

Convention, — Constitutional, members, how chosen; 11-14; 
debates show distinction between representative and 
direct government, 73-77; — party, theoretically good, 
110-112; — ^less opportunity for corruption in State, 
117; — ^more successful in appointing judges^ 117-118; 
national, greatly superior to direct national primary, 
118-119; — ^national, necessary, 119. 

Contract, social, theory of original, not a true statement, 
17-18. 

Corporations, answer to charge that Federal Courts favor, 
206-208. 

Court, — can declare invalid Acts of Congress which it thinks 
violate the Constitution, 132 ; — can overrule the decisions 
of the State Supreme Courts, 132-133; — ^power over 
taxation, 151; — ^need for Federal, 156;- — Supreme, pro- 
vided by Constitution, 156; — ^limitations of Supreme, 
157; — ^number of judges of Supreme, 157; — circuit and 
district, and appellate jurisdiction of Supreme, pro- 
vided for by original Judiciary Act, 158; — Circuit of 
Appeals created in 1892, 158; — function of Federal, 162; 
Supreme, decides only litigated cases, 163; — authority 
of Supreme, unshaken, 183-185 ;— Federal, procedure, 
freed from irrelevant considerations, 203; — Federal, 
unpopular among lawyers, 204-205; — answer to charge 
that Federal is biased in favor of corporations, 206-208; 
— interprets legislative intention, 221-225; — Supreme, in 
many states decides question of admission to the Bar, 
219-220; — ^has appreciated rights of society as opposed 
to individual, 231-232; — should care for requirements 
for admission to Bar, 238 ;— Supreme, upheld President 



INDEX 271 

Cleveland's order for troops at Chicago, 243; — winter- 
national arbitration, 262-263. 

Courts, — act as check on Congress and Legislatures, 164-168; 
— ^independence of, necessary, 186-187; — Federal, ex- 
penses of litigation in, should be cut, 313-214; — can 
refuse to recognize acts of Legislature beyond its 
authority, 225; — ^lax administration of criminal law in, 
223-226; — time of, consumed in executive matters, 226- 
227; — ^legislative power of, attacked by social reformers, 
227. 

Criminal law, — ^lax enforcement of, 225-226; — Bar Associa- 
tions working to simplify procedure, 227. 

Criticism, undue fear of popular, a present weakness in 
government, 60-61. 

Currency and Banking, problem of, 26-27. 

Debs strike in Chicago called out army, 242-243. 

Decisions, Recall of Judicial. See Recall. 

Democratic Party of 1835 favored slavery, 134-135. 

Democracy, pure, movement toward, to continue, 94-95. 

Denver, initiative and referendum, elections in, 55, 57-58. 

Direct election, of party candidates, — a modern tendency, 
110; — tends to select a popular partisan, 112; — gives 
unfair advantage to wealthy man, 112;— of judges, not 
so successful as convention, 117-118. 

Direct Government, — demand for, 33; — ^to continue, 94-95. 

Direct Primary. See Primary. 

Disarmament, complete, hope for, 256-257. 

Domestic Tranquillity. See Tranquillity. 

Draining of swamp-land should be done by the States, 150. 

Dred Scott decision unpopular, yet courts survive it, 183. 

Education,— value of, for lawyer, 217-221 ; — general, founded 
on economic sociology and science, needed for lawyer, 
238. 

Elections, — ^initiative and referendum in Denver and Colo- 
rado, 55-58;— in Cleveland, Ohio, 58. 



272 INDEX 

Election of judges,— less satisfactory than appointment, 
190-192;— in practice, 191-195. 

Ellsworth, Oliver, — drafted original Judiciary Act, 157; — 
became Chief Justice, 158. 

England, Treaty of Peace with, 260-266. 

Europe, income tax in, 61. 

Faction, definition of, 75. 

Farrand, Prof. Max, excellent work in "Records of the 
Federal Convention," 126. 

Federal Court. See Court. 

Federal power, — growth of, by Civil War, 137-138;— to 
cover inland waters, 138-139; — ^by Interstate Commerce 
legislation, 139-141;— by Pure Food Act, 141-142;— 
child labor legislation beyond, 142-143; — growth of, 
through check on white slavery, through Interstate 
Commerce clause, 143; — through punishment of post- 
office fraud, 143; — through Postal Savings Bank and 
parcels post, 144; — ^through care of Philippines and 
Porto Rico and responsibility for Cuba, also construc- 
tion of Panama Canal, 144. 

Federal Constitution, popular government under, difficulty 
of the discussion of, 1; — ^views of its makers said to be 
unsound, 2. 

Federalist, — quoted, 73-77; — Hamilton in, quoted, 122-125; 
— Madison in, quoted, 125-126; — contained justifications 
of Constitution by Hamilton, Madison, and Jay, 127. 

Federalist Party, — in power first three presidential terms, 
130; — died in 1801, 131; — ^views of, reflected in Demo- 
cratic Party, 131. 

Fortifications, — against naval invasion, 250-251 ;^-of Panama 
Canal, 259-260. 

France, — revolt from tyranny of a majority brought 
change of government in, 10; — size and expense of 
army of, 255;— Treaty of Peace with, 261-266. 

Franchise. See Voters. 

Free Press, value of, 99-100. 



INDEX 273 

Georgia, qualifications for voting in the colony of, 13. 
Germany, size and expense of army of, 255-256. 
Government relief of the oppressed, increased demand for, 

35. 
Governors, — appoint volunteers, 244-245; — appoint officers 

of militia, 247. 
Great Britain, Treaty of Peace with, 260-266. 
Greece, revolt from tyranny of majority brought change of 

government in, 10. 
Hague, The, provision in Peace Treaty to submit questions 

to, 261. 
"Hair trigger" legislation desired by New Nationalists, 

152, 153. 
"Hair trigger" reformers, not working effectively to reduce 

cost of litigation and to speed judgments, 182-183. 
Hamilton, — quoted on condition in Confederacy, 122; — ex- 
pounded Constitution, 127. 
Hawaii, — policed with our troops, 249; — fortifying, 250. 
Henry, Patrick, opposed Constitution, 127. 
Hobart, Lord Chief Justice, declared a certain Act of 

Parliament void, 163. 
Holmes, Mr. Justice, quoted regarding Police Power of 

government, 175-177. 
Holt, Lord Chief Justice, adopted opinion that certain Acts 

of Parliament were void, 162. 
Housing of troops, a problem of War Department, 252-253. 
Hughes, Mr. Justice, splendid example of, in renouncing 

presidential campaign because he had assumed judicial 

ermine, 202. 
Impeachment, — of judges, 208-211; — ^procedure in, faulty, 

209. 
Income Tax, — ^illustrates congressional subserviency to 

selfish motives in a class of the people, 61; — ^in Europe, 

61; — adopted to tax the rich, 153; — court decision 

unpopular, 183. 



274 INDEX 

Independence of Courts, the greater, the more satisfactory, 
186-187. 

Indiana Constitution, forbids examinations for admission to 
the Bar, 217-218. 

Individualistic theory of rights and duties, 9-10. 

Initiative, — ^proposed as a reform, 34; — obtained through 
representative government machinery, 40, 42-95; — 
defined, 49; — arguments for and against, 49-71; — elec- 
tions in Colorado, 53-58; — danger from cranks due to, 
60; — danger of servility from representative of the 
people, 60-63; — arguments urged for, refuted, 63-65; — 
predicted unpopularity of, 70-71; — arguments against, 
in State governments, 72; — ^weakens personal rights, 
181-182; — and referendum, would make courts more 
than ever important, 223-224. 

Insular case, decision unpopular, 183. 

International Peace, hope for, 256-257. 

International Tribunal, needed for peace, 258. 

Interstate Commerce Legislation, — a power of Federal 
Government, 139-141; — Commission appointed in 1887, 
140; — should appoint receivers in cases of Interstate 
railroads, 213. 

Jackson, Andrew, asserted national authority, yet opposed 
United States Bank, 134. 

Jay, expounded Constitution, 127 ; — first. Chief Justice, and 
Ambassador to Great Britain, 130-131. 

Jefferson,— construction of "We, the People," 5 ;— appointed 
Joseph Story to Supreme Court, 6; — opposed to him, 7; 
— strict constructionist, 127; — followers of, insisted on 
Eleventh Amendment, 129; — ^brings Madison to his 
views, 130; — tried to neutralize influence of Marshall, 
132; — for State Sovereignty, 133; — school of, continued 
by Calhoun, 134; — not pro-slavery, 135. 

Judge, — tenure of office of, 158; — retirement of, 159; — need 
for young men as, 159-160 ;^-duty of Supreme Court, 



INDEX 275 

159; — qualifications for, 188-190; — should be appointed, 

not elected, 190 ;— election of, 190-195. 
Judges, — ^life tenure essential for, 300-203; — Federal, con- 
sidered as petty tyrants, 204; — deserve no leniency from 

criticism, 211-213; — should not appoint their clerks, 

212-213; — should cut down expenses of litigation, 213- 

214; — ^need for exact information among, 221-223. 
Judges, Recall of. See Recall of Judges. 
Judge-made law based on judicial precedents — ^indispensable 

to make constitutions and statutes workable and to 

make common law applicable, 224-225. 
Judgment, independent judgment essential to great man, 

60-63. 
Judicial power, scope of, 161 ; — Federal, to hold laws invalid 

under Constitution vindicated by experience of 125 

years, 162. 
Judicial system, valid criticism of, 182-183. 
Judicial tenure of office. See Tenure of Office. 
Judiciary must be independent after appointment, 197-198. 
Judiciary Act, — original drafted by Oliver Ellsworth, 157; 

— ^provided Circuit and District Court, also appellate 

jurisdiction of the Supreme Court, 158. 
Justice, — to establish, 156-238 ;— defects in administration 

of, in United States, 214-215. 
Kansas, example of unsuccessful remedial laws, 154. 
Lawyers, — ^importance of, 216; — danger from misuse of 

power of, 217; and social reformers at present far 

apart, 233-237. 
Legal justice, new and old, 230-231. 
Legal tender, decision unpopular, 183. 
Legislative intention, interpretation of, important function 

of court, 221-225. 
Legislative power of courts attacked by social reformers, 

227. 
Legislatures, State, — apt to infringe Constitution of the 



276 INDEX 

United States, 164-165; — produce measures inconsistent 
in themselves, 223. 

Life tenure essential for judges, 200-203. 

Limitations on popular legislation, — safeguard in United 
States Constitution, 67; — ^proposed to dispense with, 68; 
— result of lack of, in Athens and Rome, 69-70. 

Lincoln, Abraham, — ^would have been recalled, 84; — quoted 
from first inaugural, 95; — used as argument against 
education for lawyers, 217-218. 

Loan Association vs. Topeka, case of, quoted, 66. 

Machine, The, the strength of, 97, 98. 

Madison, — quoted, 73-77; — ^would have been recalled, 84; — 
quoted, on condition of the Confederacy, 125; — ex- 
pounded Constitution, 127; — accepted strict construc- 
tionist views, 130; — ^not pro-slavery, 135. 

Mail Service, obstructions to, must be cleared by President, 
241. 

Marbury vs. Madison, — decided by Marshall, 132; — decided 
by reasoning, 164. 

Marshall, Chief Justice, — construction of "We, the People," 
6; — ^judgment in cases of McCulloch vs. Maryland and 
Osborn vs. the Bank, 7; — Federalist party, 127; — 
appointed Chief Justice by President Adams, 131;— 
Federalist views reflected in the judgments of, 131; — in 
control until his death, 132; — decided case of Marbury 
vs. Madison, 132;— case of Cohens vs. Virginia, 132;— 
decided McCulloch vs. Maryland and Osborn vs. the 
Bank, gave a Federalist construction to the Supreme 
Court decisions, 134;— decided case of Marbury vs. 
Madison by reasoning, 164;— effects of judgments of 
lasting importance, 196. 
Martin vs. Hunter's lessee in 1816, case of, 7. 
Maryland, qualifications for voting in colony of, 12-13. 
Massachusetts, qualifications for voting in colony of, 12. 
Massachusetts Constitution, provides for removal by joint 
resolution of the House and Senate, 210. 



INDEX 277 

Mcllwain, Professor, of Harvard, article of, on removal by 

address in England, 211. 
McCuUoch vs. Maryland, decided by Marshall, 133. 
Military Policy, weakness of, in United States, 347-253. 
Militia, — need for national, 239; — organization, leader and 

function of, 246; — officers of, appointed by Governor, 

246-247. 
Miller, Mr. Justice, quoted, 66. 
Minnesota constitutional amendment requires that the vote 

of adoption be a majority of those voting at the 

election, 43. 
Monroe Doctrine asserted by Olney, 249. 
Muckraking, conmion to-day, 2. 
National Convention, needed to determine the party policy, 

119. 
National Guard. See Militia. 

Nationalist School, New. See New Nationalist School. 
Navy, — need for national, 239; — ^rank of, reduced, 253-254; 

— cost of, 254; — efficiency of, aided by Panama Canal, 

259. 
New Hampshire, qualifications for voting in the colony of, 

12. 
New Jersey, qualifications for voting in the colony of, 12. 
New Nationalist School seeks reforms through enlarging 

functions of national government, 152. 
New York, qualifications for voting in the colony of, 12. 
Noble State Bank vs. Haskell, decision of Mr. Justice 

Holmes in case of, quoted from, 175. 
North Carolina, qualifications for voting in the colony of, 13, 
Office-holders, strength to the party, 97. 
Office seeking the man, anecdote of, in Kentucky, 112-114. 
Olney, Attorney-General, — advised Cleveland to send 

Federal troops to Chicago strike, 242; — as Secretary 

of State asserted the Monroe Doctrine, 249. 
Oregon, — initiative and referendum in, 52, 53, 54; — changed 

government in, 79-80; — Supreme Court of, confronted 



278 INDEX 

with most difl&cult problems due to initiative and 

referendum, 224. 
Osborn vs. the Bank, case of, 7; decided by Marshall, 133. 
Pacific States Co. vs. State of Oregon, case of, 79. 
Panama Canal, a new Federal jurisdiction, 144. 
Panama, — policed with our troops, 249; — fortifications at, 

250, 259-260. 
Parcels post, new Federal responsibility, 144. 
Parliament, generally accepted as omnipotent in England, 

163. 
Party, — defined, 102; — qualifications for a voter in; electors, 

104-106; — some body should define policies, 116. 
Parties, — ^necessary to popular government, 29-30, 121; — 

failure of, 31; — reorganized, 103. 
Patronage, used by the Machine, 97, 98. 
Pension, of judges, 160. 
Pensions, cost of, 254. 
"People," who were the, when the Constitution was adopted? 

11-14. 
Philippine Islands, — education and public opinion in, 100-102 ; 

— a Federal responsibility, 144; — volunteers to, ap- 
pointed by President, 245; — ^policed with troops, 249; — 

fortifying, 250. 
Police power of government considered by Mr. Justice 

Holmes, 175-177. 
Policy, party, ought to be determined by a Convention, 119. 
Popular government, — ^meaning of, 8-9; — advantage and 

purposes of, 8-11; — problem of, difficult, 24-25; — parties 

necessary to, 29-30; — need of new system, 31-36. 
"Pork barrel" bills, criticism of, 148. 
Posse comitatus, — called in to enforce orders of United 

States Courts, 241 ; — army may not be used as, 242. 
Postal Savings Bank, new Federal responsibility, 144. 
Posts, military, inadequacy of, 252-253. 
Preamble to Constitution, use of, 4-5. 
President, — can upon request protect State against domestic 



INDEX 279 

violence, and direct foreign policy of the country, 239; 
— ^power of, over armies, 240; — ^must clear obstructions 
to mail service, 241; — can call out army to enforce law 
of United States, 241-242; — fixes size of regular army, 
243; — special power of, to enlist volunters to tranquil- 
lize Philippines, 245; — Commander-in-Chief of Militia, 
246. 

Primary, direct,^-defined, 96; — reason for, 97; — ^party, pro- 
vided for, 102; — specific laws for, 103; — qualifications 
for electors at party, 104-106 ;— difficulty of holding fair, 
illustrated by anecdote, 106-110; — puts a premium on 
self-seeking of an office, 114; — ^needed at present for 
local districts, 115; — ^not needed for State convention, 
115-116; — ^most unsatisfactory for National elections, 
118-119; — ^in certain localities needed to oust boss rule, 
120-121. 

Progressives, — aim of, 34; — purpose of the new school of, 
36-38. 

Progressive Spirit, 85, 86. 

Public Improvement Bill, 148-149. 

Public Opinion, power of, 99-102. 

Pure Food Act, adopted through Interstate Commerce 
Clause, 141-142. 

Qualifications for voting, — ^in the colonies, 12, 13;— decreas- 
ingly strict, 13-14. 

Recall, — ^proposed as a reform, 34; — obtained through repre- 
sentative government machinery, 40, 42-95; — defined, 81; 
— arguments against, 82-86; — ^injustice to the officer, 
82; — injury to efficient government, 82-83; — for Presi- 
dents, 84; — of judges, in several State Constitutions, 
168; — of Judicial Decisions, 174-180 ;— weakens rights 
of individual and government guaranties, 181-182; — 
judicial, is a case of atavism, 200. 

Receiverships should not be filled by judges, 213. 

Reclamation Law in Western States, 149. 

Referendum, — ^proposed as a reform, 34; — obtained through 



280 INDEX 

representative government machinery, 40, 42-95; — defi- 
nition and description of, 42-44; — ^used in local legis- 
lation, 48; — compulsory, 49; — considered with initiative, 
49-71; — ^predicted mipopularity of, 70-71; — ^weakens 
personal rights, 181-182. 

Remedial laws unsuccessful in Kansas, 154. 

Representative Government, — ^invented by English, 66; — 
adopted by the Americans, 66-70. 

Representative system, 22-41 ; — duty of, 28 ; — ^why considered 
a failure, 38-41. 

Republican form of government, — destroyed by referendum? 
77-78 ; — considered by the Supreme Court, 79-80. 

Rights, individual, and Bill of, 64-68. 

Right of property, next to the most important right guaran- 
teed by the Constitution, 89-91. 

Rights of Individuals, — provided for in charters, etc., 197 ; — 
infringed to be invoked in court, 197; — provided by 
Constitution, have made success possible, 228; — con- 
sidered in respect to needs of society, 231-232. 

"Roads" should be built by States, 149-150. 

Rome, revolt from tyranny of a majority brought change 
of government in, 10. 

Root, Mr., address at Princeton, quoted, 23. 

Rousseau, theory of original social contract advanced by, 17. 

Salaries of judges, insufficient, 199-200. 

Schofield, Lieutenant-General, gave orders for Federal 
troops at Chicago, 242. 

Secession, right of, decided at Appomattox, 137. 

Secretary of War, report of, in 1906, quoted, 255-256. 

Senate, — as Court of Impeachment, 208; — suggested change 
in procedure for, 209-211; — Judiciary Committee of, 
might act on impeachments, 210; — defeated arbitration 
treaties, 263-266. 

Seventh Regiment, of New York, declined to go to Cuba, 
246. 

Sharswood, Judge, of Pennsylvania, quoted, 13-14. 



INDEX 281 

Short Ballot, 52-53. 

Slaves, fugitive, a problem in courts, 136. 

Social reform, — agitated in the leisure class, 34-36; — ^sug- 
gested, 228-231; — ^plea for new legal justice, 231; — ^best 
made through Supreme Court, 231-232; — advocates of, 
opposed to lawyers, 233-237. 

Socialism, — ^urgent for initiative, referendum and recall, 
89-95;— "Unrest" fed by jealousy of thrift, 91;— 
organizers of, for new millennium, 91-92; — ^movement 
for, wiU continue for a time, 94-95; — desirous of recall 
of judicial decisions, 180. 

Sociological jurisprudence, study of needed by lawyers, 
236-238. 

South Carolina, qualifications for voting in colony of, 13. 

Spanish War, critical business and political conditions fol- 
lowing upon, 32. 

Slavery,— problem before United States in 1835, 134-135; — 
Jefferson was anxious to abolish, 135; — considered a 
necessity in the South, 135-136. 

State Governments, — essential, 151-152; — could have solved 
problem of excessive fortunes, 153-154; — obstruction to 
law of, violates peace of, 240-241. 

State Court Procedure, — Judge more limited than Federal 
judge, 203-204. 

States, — ^importance of autonomy of, 145; — feel they should 
control conservation, 146-147; — should control road- 
building and draining of swamps, 150; — ^have power in 
appointment of volunteers, 245. 

Story, Mr. Joseph, appointed to Supreme Court, attacked as 
renegade of his party, 7. 

Supreme Court. See Court. 

Switzerland, — compulsory voting in, 19; — ^initiative in, 54; — 
only country outside of United States where judges are 
elected, 190. 

System, Representative, 22-41. 



282 INDEX 

Tammany, tolerable government under, only made possible 
by force of public opinion, 99-100. 

Taney, Chief Justice, — enforced national authority upon 
State territory regarding fugitive slaves, 136; — aroused 
anti-slavery party by Dred Scott Decision, 137; — 
decided case of Genesee Chief, 138;— did not weaken 
judgments of Marshall, 196. 

Tenure of Office, judicial, 197. 

Tranquillity, — to insure domestic, 239; — secured by State 
authorities, 240. 

Treaties, — of neutralization, insufficient to 'guard Panama 
Canal, 259-260 ; — of general arbitration with France and 
Great Britain, 260-266 ;— conditions of, 261-262 ;— defeat 
of, by Senate, 263; — objections to, 264; — function of, 
265;— defeat of, 265-266. 

Trent Affair, nearly a breach with Great Britain, 249-250. 

Union, — "a more perfect," 122-155; — situation at time of 
Federal Convention, 122-126; — established in Consti- 
tutional Amendments, 127-129. 

Upton, Col., opinion of, on appointment of volunteers, 245; 
—book by, "History of the Military Policy of the 
United States," 247. 

Venezuela, controversy over boundary of, 249. 

Virginia, qualifications for voting in the colony of, 13. 

Volunteer army, 244; — ^law defective, 244-245; — ^need for, 
law, 252. 

Voters, — qualifications for, in the colonies, 12-13; — ^propor- 
tion of, to population of colonies, 13; — qualifications 
for, less strict, 14-15; — women as, make percentage of 
electorate 35 or 40 per cent of total population of 
United States, 14; — classes not admitted as, 15; — 
women, reasons for, 16; — representative of the people, 
17. 

Voting, compulsory, 18, 21; — attempted in Switzerland, in 
Belgium, 19. 

War of 1812, weakness of our army, 247. 



INDEX 283 

Washington, — ^would have been recalled, 84; — ^leader of 

Federalists, 130. 
"We, the People," meaning of, 5-21 ;— decisions of Supreme 

Court as to meaning, 6-7 ; — ^meaning intended by f ramers 

of Constitution, 8. 
Webster, rival of Calhoun, 134. 
Wheaton, 1st, 334;— 4th, 316;— 9th, 738, 7. 
White, Andrew D., President of Cornell, address, 32. 
White, Chief Justice, considered whether Oregon had a 

republican form of government, 79-80. 
White slavery checked under Interstate Commerce Clause of 

Constitution, 143. 
Women, — ^votes for, would make percentage of the electorate 

35 to 40 per cent of the total population of United 

States, 14? — treason for votes for, 16. 



